Albert Tan (University of Groningen, Faculty of Law) has posted Who Can Use an Open Law? Usable Slack as a Framework for Studying the Unequal Production of Legal Determinacy on SSRN. Here is the abstract:
Legal underdeterminacy describes the range of answers that legal materials can sustain. It says less about who can keep one of those answers institutionally alive. This article develops usable slack as a middle-range concept for studying that problem. Its unit of analysis is an actor carrying a specified legal proposition through a specified institutional stage in a particular forum and historical period. Its principal observable implication is the differential attrition of historically available propositions as they pass through recognition, evidential construction, procedural preservation, endurance, settlement, review, authoritative determination, publication, and later uptake. Existing work on access to justice, legal capability, legal mobilisation, repeat players, litigation selection, and biased precedent establishes much of the surrounding terrain. Usable slack adds a proposition-specific and stage-specific framework that begins before the litigate-or-settle decision and separates actor-mediated use from the institutional conversion of an argument into precedent. The article does not report a new empirical test. It specifies a research programme, an evidential protocol for reconstructing legal availability, and conditions under which unequal proposition attrition should be most visible. It also preserves a claimant-centred limit: public law should not depend unnecessarily on an injured person accepting private ruin for the benefit of future strangers.
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