Insincere Rules

Essay — Volume 101, Issue 8

101 Va. L. Rev. 2185
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Insincere rules are dishonest in important ways. They endorse one set of preferences and values when rule-makers, including elected ones, hold another. They instruct regulated parties, under penalty of law, to do something that rule-makers do not want done. Dishonesty of those sorts may yield good consequences, but it may also yield bad ones, and it runs into deontological objections. These drawbacks may be particularly acute in one area, judicial decision making.

A rich literature addresses the merits of judicial candor and sincerity. Much of that work debates whether judges should provide complete accounts of their reasons for reaching decisions, or whether instrumental gains—preserving judicial collegiality, for example—justify doing less. Among other arguments, proponents of candor claim that transparent decision making makes judges accountable to law and strengthens courts’ legitimacy.

This Essay adds a new dimension to the debate. Judges often make rules; their precedents guide and constrain lower courts, government officials, and litigants. Most courts rely on executives to enforce their decisions, and higher courts cannot review every decision by lower courts. Consequently, judges have high enforcement costs, and that creates an incentive to use insincere rules. They may, for example, issue insincere interpretations of statutes that, if followed to the letter, would produce outcomes that they do not favor and that conflict with law. They may do so without admitting their insincerity—without being candid—as transparency would weaken the benefit of insincerity. Yet that lack of candor would not necessarily undermine their accountability to law or the legitimacy of courts. Insincere rules, by bringing the law in action closer to laws’ objectives, could improve judges’ accountability to law, or at least their fidelity to it. By aligning the law in action with the aim of the statute, insincere rules could enhance the legitimacy of courts, at least among those who know the law and observe the action. Insincere rules, then, do not raise all of the problems caused by a lack of candor. They scramble some intuitions by showing that lying can promote the rule of law.

None of that implies that insincere rules are good, but it does imply that they may not be so bad when used by judges or other rule-makers.

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  Volume 101 / Issue 8  

Changing the Vocabulary of the Vagueness Doctrine

By Peter W. Low and Joel S. Johnson
101 Va. L. Rev. 2051

Measuring the Impact of Plausibility Pleading

By Alexander A. Reinert
101 Va. L. Rev. 2117

Insincere Rules

By Michael D. Gilbert
101 Va. L. Rev. 2185

Appointing Chapter 11 Trustees in Reorganizations of Religious Institutions

By Colin M. Downes
101 Va. L. Rev. 2225