Choice of Device III: Practicability

Abstract

Abstract Chapter 6 explores how the methods of determining when, how, and how much to defer can be made more workable and predictable without undue compromise of those methods’ ability to reflect the normative reasons for deference in a particular case. Noting that there is an inevitable trade-off between making methods of deference more practicable and making them more flexible to account for variations in the degree and means of deference across contexts, the chapter expounds the factors that determine where the balance between these two considerations should lie and introduces four sets of techniques for striking that balance: (1) using rules, presumptions, and factorial analysis; (2) mapping certain normative considerations onto specific deference devices; (3) developing clear and reliable indicators of deference; and (4) developing finite scales for various devices and levels of scrutiny that combine various devices.