Introduction
It all depends on your first year section, but many law students
begin to get a sinking feeling about the law early in their first year.
Does the law actually make any difference to the way cases are decided?
Before law school, most of us would answer "Yes, of course." And many
law students start law school with the assumption that they will "learn
the rules." But in contemporary American legal education, many students
encounter a thesis that goes something like this:
The
laws have nothing to do with how cases come out. They are just window
dressing that skillful lawyers and judges can manipulate to justify any
decision they please.
This counterintuitive position is a version of the claim that law is indeterminate, or what we might call the indeterminacy thesis.
The Indeterminacy Debate
The indeterminacy thesis is associated with legal realism,
but in its most strident form, it is most strongly identified with the
Critical Legal Studies movement–a loose and multifaceted cluster of
legal scholars that became very prominent in the 1980s.
The indeterminacy debate is about the claim that the law
does not constrain judicial decisions. Put differently, the claim is
that all cases are hard cases and that there are no easy cases. The
strongest version of the claim is the notion that any result in any
legal dispute can be justified as the legally correct outcome, but the
thesis can be modified or weakened in various ways.
What does the indeterminacy thesis mean?
Let's call the claim that the laws (broadly defined to
include cases, regulations, statutes, constitutional provisions, and
other legal materials) do not determine legal outcomes the indeterminacy thesis.
Because there are many different versions of the indeterminacy thesis,
our approach will be to identify clearly the distinct versions of the
indeterminacy thesis and then to consider each version of the thesis on
its own merits.
Indeterminacy versus Underdeterminacy
The next step in clarifying the indeterminacy debate is to
distinguish between "indeterminacy" and "underdeterminacy" of law. Thus
far, we have accepted the implicit assumption that indeterminacy and
determinacy are exhaustive categories, i.e. that the decision of a case
is either determined by the law or it is indeterminate. This assumption
is not correct. A legal dispute may be constrained by the law, but not
determined by it.
Roughly, an case is underdetermined by the law if the
outcome (including the formal mandate and the content of the opinion)
can vary within limits that are defined by the legal materials. This
approximation can be made more precise by considering the relationship
between two sets of outcomes of a given case. The first set consists of
all possible results — all the imaginable variations in the mandate
(affirmance, reversal, remand, etc.) and in the reasoning of the
opinion. The second set consists of the outcomes that can be squared
with the law — the set or legally acceptable outcomes. The distinctions
between indeterminacy, underdeterminacy and determinacy of the law with
respect to a given case may be marked with the following definitions:
- The law is determinate with respect to a given case if and only
if the set of legally acceptable outcomes contains one and only one
member. - The law is underdeterminate with respect to a given case if and
only if the set of legally acceptable outcomes is a nonidentical subset
of the set of all possible results. - The law is indeterminate with respect to a given case if the set of
legally acceptable outcomes is identical with the set of all possible
results.
Hard Cases
The notion of a "hard case" can now be explicated with reference to
the idea of underdeterminacy. A case is a "hard case" if the outcome is
underdetermined by the law in a manner such that the judge must choose
among legally acceptable outcomes in a way that changes who will be
perceived as the "winner" and who the "loser." The point is that the
outcomes of an case need not be completely indeterminate in order for
it to be a hard case; a case in which the results are underdetermined
by the law will be "hard" if the legally acceptable variation makes the
difference between loss or victory for the litigants. The distinction
between indeterminacy and underdeterminacy is rarely observed in the
indeterminacy debate, but it is nonetheless important to assessing the
debate. Claims that the law is radically indeterminate are implausible,
but more modest claims about underdeterminacy may both be defensible
and play a role in a radical critique of liberal legal theory.
Is the law radically indeterminate?
The strongest (the most ambitious) claim about the indeterminacy of
law is the claim that in every possible case, any possible outcome is
legally correct. In other words, the strong indeterminacy thesis is the
claim that the law is radically indeterminate:
The Strong Indeterminacy Thesis:
In any set of facts about actions and events that could be processed as
a legal case, any possible outcome — consisting of a decision, order,
and opinion — will be legally correct.
To
falsify the strong indeterminacy thesis one needs to establish that
there is at least one possible case in which at least one possible
outcome is legally incorrect. This refutation would disprove the strong
indeterminacy thesis only in the sense stipulated here; it would not
establish that the law is always, usually, or even frequently
determinate.
The Argument from Easy Cases
One way to establish that there is at
least one possible case in which at least one outcome is legally
incorrect has been called "the argument from easy cases" by Fred
Schauer. In its simplest form, the argument from easy cases points to a
hypothetical case in which at least one outcome is legally incorrect.
The following discussion attempts to formulate one such easy case:
Consider
the following case, consisting of facts, a legal rule, and a legal
event. First, postulate the following set of events and actions: Ben
visited Point Magu State Beach in Ventura County, California between
the hours of 12:30 p.m. and 4:00 p.m. on Sunday, February 14, 2004.
Second, consider the following legal rule: Section 2 of the Sherman
Antitrust Act states, "Every person who shall monopolize or attempt to
monopolize, or combine or conspire with any other person or persons, to
monopolize any part of the trade or commerce among the several States,
or with foreign nations, shall be deemed guilty of a felony . . ." (26
Stat. 209 (1890)). Third, consider the following claim about a possible
case: Ben's visit to the beach on the date and time specified would not
constitute a violation of Section 2 of the Sherman Act. In order fully
to convince you of this, I would need to tell you more about what went
on at the beach on that day. The details will include Ben's looking at
the ocean, speaking with friends about politics, reading a book, and so
forth. Children flew kites; a friend grilled chicken and hot dogs. You
might want to know whether Ben discussed any business dealings at the
beach: he did not. But no matter how many questions you asked, no
matter how hard you tried, you would not be able to make out a legally
valid case that the Sherman Act was violated. If a prosecution were
filed against Ben based only on the events specified, a verdict of
guilty would be legally incorrect.
This
claim about legal correctness does not to deny that it is possible that
things would go wrong in some way. Perjury might be committed; the
judge assigned to the case might be deranged. Our system of justice is
hardly foolproof, but that does not entail the further conclusion that
any result is legally correct.
The upshot of this example of
an easy case is this: there is at least one possible case in which at
least one possible outcome is legally incorrect. Therefore, the strong
indeterminacy thesis (as I have defined it) is false. Notice my
argument is not that the outcome of an antitrust prosecution based on
the facts I outline is predictable. Rather, my claim is that one
possible outcome, i.e. conviction, would be legally incorrect. If the
law is correctly applied and the witnesses testify truthfully, the
prosecution should fail.
Changing the Hypothetical
Of course, we can easily change
the hypothetical so that the legally correct outcome would change. Just
add a conspiratorial conversation at the beach that does violate the
Sherman Act. But the fact that the hypothetical can be changed so as to
change the legally correct outcome is not responsive to the argument
from easy cases. Let us stipulate for the sake of argument that it is
always be possible to add facts to an easy case such that the addition
of the new facts will change the legally correct outcome of the case.
This does not demonstrate that there are no easy cases.
Quite the contrary, the fact
that the advocate of the strong indeterminacy thesis needed to add
facts to the easy case in order to change the legally correct outcome
shows that as originally stated the easy case was not indeterminate. If
the strong indeterminacy thesis were true, then a reasonable legal
argument should be available on the facts as originally stated in the
hypothetical. The additional facts should not be necessary. That facts
must be added to transform an easy case into a hard one demonstrates
that the law does constrain the set of legally correct outcomes.
Is a modest version of the indeterminacy thesis defensible?
If the strong indeterminacy
thesis cannot be supported, is there a more modest claim about
indeterminacy that is defensible and has critical bite? One modest
version of the indeterminacy thesis might be the following: in most (or
almost all) of the cases that are actually litigated, the outcome is
underdetermined by the law. This claim about indeterminacy is not
refuted by the argument from hypothetical easy cases. Confirmation of
the actually-litigated underdeterminacy thesis would require empirical
investigation, but there are some good reasons to believe that cases
which actually proceed to filing, trial, or appeal will frequently be
underdetermined by the law. Litigants will rarely have an incentive to
settle easy cases. For example, in a civil dispute where the law gives
a determinate answer to the question of who will win and what the
amount of their judgment will be, the parties to litigation will
usually prefer to settle, rather than incur the expenses of litigation.
Uncertainty about the law is one of the factors that selects which
cases will be filed, go to trial, and be appealed. This point should
not be exaggerated, however: litigation may proceed for any number of
reasons, including an irrational overconfidence in a hopeless case,
uncertainty about facts in a case in which the law is clear, and so
forth.
Important Cases
Another modest version of the
indeterminacy thesis claims that while many ordinary cases are roughly
determinate, all the really important cases are indeterminate. Put more
precisely, the claim might be that the important issues in important
cases are underdetermined by the law. If true, this claim might
preserve almost all of the critical force of the strong indeterminacy
thesis. Yes, there are easy cases, but those cases are unimportant.
One difficulty with the
important case version of the indeterminacy thesis is its potential
circularity. Our concept of what counts as an important case may have
indeterminacy as a component. Part of what makes a case important is
that the result is not certain or predictable; if we all knew how the
case would come out, we would not be interested. Likewise, the Supreme
Court may select cases in part on the basis of their legal
indeterminacy.
Conclusion
I have just begun to scratch
the surface of the indeterminacy debate, but I hope that I've provided
enough perspective so that you can begin to think about this important
question on your own. As I'm sure you know by now, I am not a fan of
the radical indeterminacy thesis, but I also think it is important to
recognize that the law is underdeterminate in important ways.
Related Lexicon Entries
Legal Theory Lexicon 051: Vagueness and Ambiguity
Legal Theory Lexicon 057: Realist Deconstruction of Formal Legal Categories
Bibliography
Kenneth J. Kress, “Legal Indeterminacy, 77 California Law Review 283 (1989).
Lorenz Kaehler, Indeterminacy in the law: Types and problems, IVR encyclopedie
Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987).
(This entry was last revised on November 15, 2009.)