- Indeterminacy debate in legal theory
The indeterminacy debate in legal theory can be summed up as follows: Can the law constrain the results reached by adjudicators in legal disputes? Some members of the
critical legal studiesmovement — primarily legal academics in the United States— argued that the answer to this question is "no." Another way to state this position is to suggest that disputes cannot be resolved with clear answers and thus there is at least some amount of uncertainty in legal reasoning and its application to disputes. A given body of legal doctrine is said to be "indeterminate" by demonstrating that every legal rule in that body of legal doctrine is opposed by a counterrule that can be used in a process of legal reasoning.
The "indeterminacy thesis", in its strongest form, is the proposition that a judge can "square" any result in a particular case with the existing legal materials through the use of legitimate legal arguments. In the 1990s the indeterminacy thesis came under heavy attack by liberal and conservative defenders of the
rule of law, and the debate, though its mantle is in the process of being taken up by a new generation of scholars, has left the intellectual spotlight for the time being.
Evidence of the unpredictability of laws
Today there is ubiquitous evidence that the law is largely unpredictable:
Split rulings: When cases are decided by a group of judges, such as in the U.S. Supreme Court, the ruling is often split. Many U.S. Supreme Court cases are decided by a narrow 5-4 margin. If the law dictated the outcome of cases, then judges would agree as to what the law says about a case. Unfortunately, not even Supreme Court judges can agree as to what the law says, thus verifying its unpredictability.
The growth in litigation: If lawyers could accurately predict how a judge would rule, there would be no reason to waste money litigating. If they litigated a predictable case, they would be sued for malpractice, or even disbarred for not knowing the law. However, since the law is unpredictable, lawyers can’t predict how judges will rule, even after reading the text of the law. Thus lawyers have no choice but to litigate if they want to learn whether something is or isn’t illegal.
On-the-job predictions: When attempting to predict the outcome of a case, lawyers never look only at the text of the law. Rather they look to factors including the judge's personal biases, the judge's political biases, the political climate, public opinion and a variety of other psychological factors.
Law school exam grading: At most law schools, when students are tested in exams, they are not given points for their conclusion. They are not given points for concluding that the law was or wasn’t violated. Rather, they are graded on how they get to the answer "“Maybe.”" [http://www.amazon.com/dp/0890897603/] Examiners can’t award points for the conclusion because they themselves don’t know what the conclusion will be — no one knows how a judge will rule until the judge actually rules.
*Lawrence Solum, " [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1156429 On the Indeterminacy Crisis: Critiquing Critical Dogma] ", 54 The University of Chicago Law Review 462 (1987).
*Kenneth J. Kress, "“Legal Indeterminacy", 77 California Law Review 283 (1989).
*Mark Tushnet, "Critical Legal Theory (without Modifiers) in the United States", 13 Journal of Political Philosophy 99 (2005)
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