Ryan Calo (University of Washington – School of Law; Stanford University – Law School; Yale Law School) has posted Privacy Law's Indeterminacy (20 Theoretical Inquiries L. XX (2019)) on SSRN. Here is the abstract:
American Legal Realism numbers among the most important theoretical contributions of legal academia to date. Given the movement’s influence, as well as the common centrality of certain key figures, it is surprising that privacy scholarship in the United States has paid next to no attention to the movement. This inattention is unfortunate for several reasons, including that privacy law furnishes rich examples of the indeterminacy thesis—a key concept of American Legal Realism—and because the interdisciplinary efforts of privacy scholars to explore extra-legal influences on privacy law arguably further the plot of legal realism itself. The application of social science to privacy has, if anything, deepened its indeterminacy.
Highly recommended. I think that discussion of these issues is sharpened and clarified by distinguishing "indeterminacy," "underdeterminacy," and "determinacy." True "indeterminacy" occurs in the very rare circumstance where the law permits any outcome. Full "determinacy" is equally rare: even the most precise legal norm will create some borderline cases. The real questions are usually about "underdeterminacy" where the law permits some outcomes and rules others our. For my take on these issues, see On the Indeterminacy Crisis: Critiquing Critical Dogma.