Legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (through the adjudicative process) or by declaring general principles through a centralized authority that are to be applied in individual cases (through the rulemaking process). Administrative agencies have long had the unfettered authority to choose between the two methods. Although each method could identify the same solution to the legal issues that come before them, in practice, the two systems commonly settle upon different resolutions. Each system presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different aspects of a legal problem. These differences produce different resolutions to legal problems. The single-case perspective of adjudication seems, in many ways, cognitively inferior to the broad perspectives that legislatures can incorporate into their decisionmaking processes. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate the adoption of simple, elegant rules for decisionmaking. The assessment of which approach is superior is, therefore, indeterminate. Each has its strengths and weaknesses that make it more or less appropriate for different contexts.
Rachlinski, Jeffrey J., "Rulemaking versus Adjudication: A Psychological Perspective" (2005). Cornell Law Faculty Publications. 861.
Published in: Florida State University Law Review, Vol. 32, No. 2 (Winter 2005).