17. I suppose, therefore, that truly “simple” cases are not only metaphysically determined, but also epistemologically determined: we may be entitled to say which particular result is actually correct. The fact that such a result exists, whether or not we may be entitled to identify it, should not be sufficient to distinguish it from “simple” cases. (For the distinction between metaphysical and epistemological indeterminacy, see Kress, Ken, A Preface to Epistemological Indeterminacy, Northwestern University Law Review 85 (1990): 134-147.) 32. What if a prediction based on a non-minimalist conception of class were possible, a conception that was excluded from the previous definition of simple cases? The difficulty, as we saw in Dworkin`s discussion, is that the further one moves away from minimalism in class-characterization, the more questionable the “correctness” of a particular outcome becomes, and the less certain the basis of the prediction becomes. (For a reliable prediction—an epistemic realization—we need epistemological determination, not just metaphysical determination.) Only in simple cases do we combine rational determinability with non-contestability in a way that provides a solid anchor for predictions. The uncertainty thesis emerged as a left-wing response to Ronald Dworkin`s “right answer” thesis. In its strongest form, it is an extreme version of legal realism. She argues that nothing has the force of law until it is enacted by a public servant — either a judge or the legislature. For example, a law that says “No person may smoke in a hospital” does not mean that “John Doe may not smoke in a hospital”; The second declaration is the law only if a legitimate authority declares it. Let us call the assertion that laws (broadly defined around cases, regulations, laws, constitutional provisions and other legal documents) do not determine legal outcomes the uncertainty thesis. Since there are many different versions of the uncertainty thesis, our approach is to clearly identify the different versions of the uncertainty thesis, and then consider each version of the uncertainty thesis separately.
19. It is common for the proponent of the simple case argument to confuse overall rational indeterminacy with rational, simplistic indeterminacy. Thus Hegland: “[I]t takes only one case, in which doctrine determines the results in order to falsify the premise of indeterminacy”, Goodbye to Deconstraction at 1210. The case of this maneuver should raise questions about the value of the refuted “premise”. (The premise unfortunately has its defenders; see again Spann, Deconstructing the Legislative Veto, and see Tushnet`s discussion, footnote 24 below.) The Strong Indeterminacy Thesis: In any set of facts about actions and events that could be treated as a legal matter, every possible outcome – consisting of a decision, an order and an opinion – will be legally correct. 11. This strategy of general argumentation has been used – unconvincingly in my view – against vagueness in Kress, Ken, Legal Indeterminacy, California Law Review 77 (1989): 283-337. Indeed, one cannot say that a legal statement is good or bad without making a normative value judgment about what the law should be. [clarification needed] It all depends on your first-year section, but many law students start to get a keen idea of law at the beginning of their first year. Does the law really make a difference in how cases are decided? Before law school, most of us said, “Yes, of course.” And many law students begin law school on the assumption that they will “learn the rules.” But in contemporary American legal education, many students stumble upon a thesis that looks like this: 33. Schauer, Rules and the Rule of Law, p. 659, footnote 24.
Schauer notes that the “modern articulation and development” of the selection hypothesis can be traced back to Priest, George and Klein, Benjamin, The Selection of Disputes for litigation, Journal of Legal Studies 13 (1984): 1-55. Priest and Klein`s hypothesis is indeed somewhat different from Schauer`s version (which, however, is most relevant to jurisprudential concerns here). Priest and Klein argue that litigation is limited to the unrepresentative (but not random) sample of legal events for which the relevant “standard of decision” does not permit a rational estimation or prediction of the likely outcome. But “the standard of decision” “may be based on precedent or, say, personal bias (e.g., racial bias) of a judge or jury.” Thus, in the language used here, we can say that the priest and small hypothesis is that the cases selected for litigation are those that are causally indeterminate, i.e. (1) because the law in question is rationally undefined (therefore the class is causally indeterminate) and no other psychosocial fact about the judge or jury renders the decision approximately causal (so no other psychosocial fact allows a reliable prediction possible); or (2) because the law in question is determined rationally, but any other psychosodic fact about the prediction of judges or jurors is impossible (i.e. the basic conditions are not given). Therefore, according to Priest and Klein`s hypothesis, there are only (1) the rationally indeterminate cases for which no additional non-legal facts (e.g. on jury bias) allows for reliable prediction, or (2) rationally determined cases for which an additional non-legal fact (e.g., about possible jury bias) makes a reliable prediction impossible, which are usually selected for litigation. “Indeterminacy”.
Merriam-Webster.com Dictionary, Merriam-Webster, www.merriam-webster.com/dictionary/indeterminacy. Retrieved 11 October 2022. To fully convince you of the claim that there was no violation of the Sherman Act, I should tell you more about what happened on the beach that day. Details include Ben`s view of the ocean, talking to friends about politics, reading a book, and more. Children flew kites; A friend grilled chicken and hot dogs. You might want to know if Ben discussed business on the beach: he didn`t. But no matter how many questions you asked, no matter how hard you tried, you wouldn`t be able to spot a legally valid case that Sherman`s law was violated. If an indictment against Ben were brought solely on the basis of the events stated, a guilty verdict would be legally wrong. In the 1990s, the uncertainty thesis was violently attacked by liberal and conservative defenders of the rule of law, and the debate, although taken up by a new generation of scientists, has left the intellectual spotlight for the time being. 1. This formulation of the claim of rational indeterminacy has the advantage of being neutral between indeterminacy and underdetermination. The law is vague in that any result can be justified on the basis of class; The law is indefinite in the sense that more than one, but not just any, can be justified on the basis of class.
However, for those concerned about the legitimacy of case law, this distinction does not matter: all that is needed (as I discuss below) is the assertion of rational indeterminacy as formulated in the text. Lawrence Solum makes far too much of this distinction and effectively misses the gist of most uncertainty arguments. See Solum, Lawrence B., On the Indeterminacy Crisis: Criticizing Critical Dogma, University of Chicago Law Review 54 (1987): 462–503, especially 474–475. Solum himself even admits the rational indeterminacy of law in my sense “in many, but not all, real cases.” Id., p. 494. The debate on the legal theory of uncertainty can be summarized as follows: can the law limit the results of arbitrators in disputes? Some members of the movement for critical legal studies – mostly jurists in the United States – argued that the answer to this question was “no.” Another way to phrase this position is to suggest that disputes cannot be resolved with clear answers and therefore there is at least some degree of uncertainty in the legal reasoning and its application to disputes. A particular legal doctrine is called “indefinite” by showing that any rule of law in this legal doctrinkorpus is opposed by a counterrule that can be used in a process of legal argumentation. 10. It is a common mistake to assume that this is the central theme of indeterminacy in the writings of legal realists. I address this topic at length in an unpublished article on legal realism and the varieties of legal indeterminacy, which also covers some of the other topics in this section in more detail. I have only just begun to scratch the surface of the debate on vagueness, but I hope I have provided enough perspective for you to start thinking about this important issue yourself.
As I am sure you know, I am not a fan of the radical uncertainty thesis, but I also think it is important to recognize that the law is vague on important points.