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Calculating the Standard Error: Just How Much Should Empirical Studies Curb Our Enthusiasm For Legal Standards?

Responding to Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 Harv. L. Rev. 1214 (2010)

In her essay Inducing Moral Deliberation: On the Occasional Virtues of Fog, Professor Seana Valentine Shiffrin argued that the unclarity and uncertainty of legal standards as compared to legal rules should not be understood as defects. Shiffrin claimed that these features of standards actually foster citizens’ moral deliberation and democratic engagement with law. In this response, Professor Brian Sheppard suggests a more complicated approach to assessing the merits of different legal norms. Sheppard argues that in addition to the content of the norm — rule or standard — the species of the norm matters. Sheppard further claims that the presence of a conflict between the legal norm and another norm can make rules, as opposed to standards, better at inducing moral deliberation. Through this more complicated frame, Sheppard then reviews the empirical scholarship and suggests that Shiffrin scale back and fine-tune her claim about legal standards to make it more consistent with findings about how people actually respond to such standards.