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Kaplow, Louis --- "General Characteristics of Rules" [2011] ELECD 1060; in Parisi, Francesco (ed), "Production of Legal Rules" (Edward Elgar Publishing, 2011)

Book Title: Production of Legal Rules

Editor(s): Parisi, Francesco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440326

Section: Chapter 2

Section Title: General Characteristics of Rules

Author(s): Kaplow, Louis

Number of pages: 25

Extract:

2 general characteristics of rules
Louis Kaplow*



1. Introduction
Legal rules serve many functions: channeling behavior (for example, tort
law, environmental law, criminal law), providing background rules (much of
contract, commercial and corporate law), and defining obligations and eligibility
for benefits (tax law, social welfare provisions). This chapter, following existing
research, focuses on the first type of law. The relevance (or irrelevance) of the
analysis to other types of law will usually be apparent, and some comments
about the differences in contexts will be noted.
The most commonly noted characteristic of rules concerns the degree of
precision, detail, or complexity they embody: how finely are different sorts of
behavior to be distinguished? Such matters may arise in defining the scope of
a legal command, providing for exceptions, adjusting sanctions based upon
aggravating and mitigating circumstances, and so on. A related aspect of legal
commands concerns when a given level of detail is provided ­ at the time of
promulgation (`rules') or subsequent to individuals' actions, in the context
of adjudication (`standards'). These aspects of rules are considered from a
perspective that focuses upon information costs and dissemination: different
sorts of legal commands involve differing costs of formulation and application
by private parties (deciding upon their own conduct) and adjudicators, and the
character of laws also influences how well parties actually will understand them
and conform their conduct accordingly. This approach is used to illuminate
choices about the degree of precision (or complexity) with which legal
commands are formulated and between rules ...


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