LEGAL INDETERMINACY - Brian Leiter

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LEGAL INDETERMINACY
Brian Leiter
University of Texas School of Law

To say that the law is indeterminate is to say that the class of legal reasons
(hereafter "the Class") is indeterminate. The Class, in turn, consists of
four components:
1. Legitimate sources of law (e.g., statutes, constitutions, court decisions, social
policy, morality);
2. Legitimate interpretive operations that can be performed on the sources in
order to generate rules of law (e.g., proper methods of interpreting statutes
or prior cases or of reasoning about moral concepts as these figure in the
sources);
3. Legitimate interpretive operations that can be performed on the fads ofrecord
in order to generate facts of legal significance (e.g., proper ways of group-
ing and categorizing fact situations for purposes of legal analysis); and
4. Legitimate rational operations that can be performed on facts and rules of
law tofinallyyield particular decisions (e.g., deductive reasoning).
To say that the law is indeterminate, then, is equivalent to saying that the
legitimate sources of law together with the legitimate interpretive and
rational operations are indeterminate.
Let us say that the law on some point is rationally indeterminate if the
Class (on some conception) is insufficient to justify only one outcome in
that case.1 Let us say that the law on some point is causally indeterminate if

Portions of the analysis of indeterminacy developed here appeared originally in an unpub-


lished manuscript, "Legal Realism and the Varieties of Legal Indeterminacy," which circu-
lated widely in 1992-1993, and, in turn, informed parts of the discussion in Coleman &
Leiter, Determinacy, Objectivity and Authority, and in Note, Just Disagreement: Indeterminacy and
Rationality in the Rule ofLaw, YALE LAWJOURNAL 103 (1994): 997-1030. For helpful comments
on or discussion of the earlier manuscript or drafts of this article, I am grateful especially to
Jules Coleman, and also to Larry Alexander, Lynn Baker, Kent Greenawalt, Stephen Perry,
Scott Shapiro, Thomas A. Smith, an anonymous referee for this journal, and audiences at the
University of Arizona College of Law in April 1994 and at Colcman's jurisprudence seminar
at Yale Law School in spring 1993.
1. This formulation of the claim of Rational Indeterminacy has the virtue of being neutral
as between indeterminacy and undmieterminacy. The law is indeterminate insofar as any
outcome can be justified on the basis of the Class; the law is uru&rdeterminate insofar as more
than one, but not simply any, outcome can be justified on the basis of the Class. For those who
arc worried about the legitimacy of adjudication, however, this distinction docs not matter: All
that is needed (as I discuss below) is the claim of Rational Indeterminacy as formulated in the

481
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482 BRIAN LEITER

the Class is insufficient to cause the judge to reach only one outcome in that
case. More precisely, Causal Indeterminacy is the thesis that the, Class to-
gether with relevant Background Conditions is not causally sufficient to
determine only one outcome. The relevant Background Conditions in-
clude two assumptions: (1) judges are rational, honest, competent, and
error-free; and (2) the law exercises its causal influence through reasons. It
is true, of course, that if judges are not rational, honest, or competent, or if
they make mistakes, then the Class will be Causally Indeterminate, but this
is plainly a less interesting point about the law.2 The thesis at issue here is
that, even when the Background Conditions obtain, the law may still be
Causally Indeterminate—typically because it is Rationally Indeterminate
(when legal reasons do notjustify only one outcome, then other psychologi-
cal and sociological factors (e.g., the personality or the political ideology of
the judge) must come into play to causally determine the decision) . 3
The law can be Rationally Determinate and Causally Indeterminate,
insofar as reasons are not causally effective—a thesis, in fact, embraced by
some Legal Realists (notably Underhill Moore 4 ). The converse, however,
does not seem possible, assuming the Background Conditions obtain.
Indeed, Causal Indeterminacy (or "Indeterminacy of Causes") follows
necessarily from the truth of Rational Indeterminacy (or "Indeterminacy
of Reasons") if we grant the following plausible thesis about causation in
virtue of reasons:

(X) If reasons cannot rationallyjustify an event, then they cannot be causally


sufficient for that event.5

Thus, (X) supposes that for reasons to be Causally Determinate they must,
at a minimum, be Rationally Determinate: If reasons A and B cannot
constitute good reasons for uniquely deciding C, then it is hard to see how
A and B could be causally sufficient for the unique decision C. If reasons
are to be the sufficient cause of a decision, then they must, so thesis (X)

text. Lawrence Solum, for one, makes far too much out of this distinction and thus effectively
misses the point of most indeterminacy arguments. See Lawrence B. Solum, On the Indetermi-
nacy Crisis: Critiquing Critical Dogma, UNIVERSITY OF CHICAGO LAW REVIEW 54 (1987): 462-503,
esp. at 474-475. Solum himself even ends up conceding the Rational Indeterminacy of law
in my sense "in many, but not all, actual cases." Id. at 494.
2. Though some Legal Realists did like to make precisely this point: (/".Jerome Frank, An
Judges Human? Part Ttvo, UNIVERSITYOF PENNSYLVANIA LAW REVIEW 80 (1931): 233-267.
3. See, generally, my discussion of Legal Realism, in D.M. Patterson (ed.), A COMPANION TO THE
PHILOSOPHYOF LAW AND LEGAL THEORY (Oxford: Blackwell, 1995).
4. See, e.g.. Rational Basis ofLegallnstitutions, COLUMBIA LAW REVIEW 23 (1923): 609-617; cf.
the discussion in Leiter, Legal Realism.
5. Note that thesis (X) is compatible with the Humean thesis that our fundamental be-
liefs—e.g., in causation—do not admit of rational vindication. For even on the Humean
picture, we must appeal to an additional factor (human nature, human sentiment, habit) to
explain the fact that we believe in causation despite the absence of complete rational justifica-
tion.

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Legal Indeterminacy 483
supposes, determine C qua reasons. If, however, the law is Rationally
Indeterminate, then the Class cannot determine (qua reasons) only one
outcome, so granted (X) (and the Background Conditions), die truth of
Causal Indeterminacy follows.
The law can be Rationally Indeterminate in virtue of (1) deficiencies of
the Class that are specific or peculiar to law ("Specific Indeterminacy of
Reasons"); or (2) deficiencies of the Class in virtue of general deficiencies
in all rational or semantic content ("General Indeterminacy of Reasons").
Karl Llewellyn's famous claim that the law is indeterminate in virtue of the
existence of conflicting, but equally proper, canons of statutory construc-
tion is an example of an argument for the Specific Indeterminacy of
Reasons.6 The claim associated with the skeptical reading of Wittgenstein7
and with Derridean deconstruction8 that there are no objective facts about
meaning is an example of an argument for the General Indeterminacy of
Reasons: In view of a general feature of semantic content—its lack of
objective determinacy—the law, as but one domain dependent on seman-
tic content, will also lack determinacy.9
Most writers who assert that the law is indeterminate have in mind the
claim of Specific Indeterminacy of Reasons, and it is with this claim that I
am primarily concerned.10
Two more preliminary distinctions: The law suffers from Global Rational
Indeterminacy if the Class is insufficient to justify only one outcome in any
case. It suffers from Local Rational Indeterminacy if the Class is insufficient
to justify only one outcome in some particular class of cases.
The plausibility of the thesis of the Rational Indeterminacy of law turns
entirely on the plausibility of its conception of the Class and its constituents.
Someone might have too cramped a view, for example, about the sources of
law, in virtue of which the law appears to be Rationally Indeterminate. The

6. Karl Uewcllyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How
Statutes Are to be Construed, VANDERBILT LAW REVIEW 3 (1950): 395-406. For the analagous
argument regarding the interpretation of prior court decisions, see KARL LLEWELLW, THE
BRAMBLE BUSH (New York: Oceana, 1930), 72-76.
7. Cf. SAUL KRIPKE, WITTGENSTEIN ON RULES AND PRIVATE LANGUAGE (Cambridge, Mass.:
Harvard University Press, 1982). On the deficiencies of die skeptical interpretation, see
Crispin Wright, Kripke's Account of the Argument Against Private Language, JOURNAL OF PI IILOSO-
PHY81 (1984): 759-778.
8. Cf Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, YALE LAW JOURNAL 94
(1985): 997-1114; Gary Pcller, The Metaphysics of American Law, CALIFORNIA LAW REVIEW 73
(1985): 1151-1290,esp. at 1160-1170.
9. This argument for the General Rational Indeterminacy of law is actually a bad one as
some writers have noted. See Frank I. Michclman, Politics as Medicine: On Misdiagnosing Legal
Schohrship,YALZ LAWjoURNAL90 (1981): 1224-1228, esp. at 1227;Jules L. Coleman and Brian
Leitcr, Determinacy, Objectivity and Authority, UNIVERSITY OF PENNSYLVANIA LVW REVIEW 142
(1993): 549-637, esp. at 571-572.
10. It is a common mistiike to suppose that this is the central indeterminacy theme in the
writings of the Legal Realists. I discuss this issue at some length in an unpublished paper on
"Legal Realism and the Varieties of Legal Indeterminacy," in which some of the other themes
in this section are also developed at greater length.

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484 BRIAN LEITER

"Positivist" believes that the law suffers from a type of Local Indeterminacy
of Reasons—i.e., it is indeterminate in the "hard" cases. Ronald Dworkin
can be understood as replying that this only appears to be so because the
Positivist has too restricted a conception of the sources of law: If we expand
the sources to include certain unpedigreed moral principles, we find that
even putatively hard cases are Rationally Determinate.11 Conversely, some-
one might have a dim view of the determinacy of analogical reasoning—as
a part of the Class—in virtue of which the law appears to be Rationally
Indeterminate; indeed, such a view is espoused by writers in Critical Legal
Studies who attack reasoning by analogy as a "method" of legal reasoning.12
Against these writers, Cass Sunstein has recently argued for an optimistic
view of the determinacy of analogical reasoning.13
Surprisingly, though, much of the literature on indeterminacy has been
occupied not with the merits of the underlying conception of the Class, but
rather with three general arguments that are supposed to constitute blan-
ket refutations of the claim of indeterminacy (more precisely, of Rational
Indeterminacy), independent of any particular account of the Class. In
this article, I propose to show why none of these arguments are successful
against any interesting and plausible indeterminacy thesis.
The three arguments at issue are the arguments from easy cases, pre-
dictability, and the selection hypothesis. Each points to a (largely) uncon-
tested legal phenomenon that is supposed to show that the law is not in
fact Rationally Indeterminate. The three arguments are themselves closely
related: Easy cases are also cases in which the outcome is clearly predict-
able, and the prevalance of easy cases has been obscured only because
hard cases are typically "selected" for litigation through the stage of appel-
late review. Although these arguments are widely invoked as refutations of
the indeterminacy thesis,141 shall show, first, that the argument from easy
cases depends on the misleading conflation of global and local indetermi-
nacy, and second, that the arguments from predictability and the selection
hypothesis are completely parasitical on the argument from easy cases and
thus carry no independent weight. None of these popular argumentative

11. This general strategy of argument has been deployed—not convincingly to my


mind—against indeterminacy in Ken Kress, Legal Indeterminacy, CAUFORNIA LAW REVIEW 77
(1989): 283-337.
12. Cf. Mark Tushnet, Following the Rules Laid Down: A Critique of Intetpretivism and Neutral
Principles, HARVARD LAW REVIEW 96 (1983): 781-827, esp. at 818-819; ROBERTO UNCER, THE
CRITICAL LEGAL STUDIES MOVEMENT (Cambridge, Mass.: Harvard University Press, 1986), esp.
at 8-11.
13. Cass Sunstein, On Analogical Reasoning, HARVARD LAW REVIEW 106 (1993): 741-791.
14. See, e.g., Kress, Legal Indeterminacy, Solum, On the Indeterminacy Crisir, Frederick Schauer,
Easy Cases, SOUTHERN CAUFORNIA LAW REVIEW 58 (1985): 399-440; Kenney Hegland, Goodbye to
Deconstruction, SOUTHERN CAUFORNIA LAW REVIEW 58 (1985): 1203-1221; Donald F. Brosnan,
Serious But Not Critical, SOUTHERN CAUFORNIA LAW REVIEW 60 (1987): 259-396, esp. at 353.
Many of these writers are, of course, responding to correspondingly implausible claims about
indeterminacy in the literature of Critical Legal Studies. See, e.g., Girardeau Spann, Decon-
structing the Legislative Veto, MINNESOTA LAW REVIEW 68 (1984): 473-544.

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Legal Indeterminacy 485

strategies, I conclude, has any bearing on the truth of any interesting claim
about the rational indeterminacy of law. Those worried about indetermi-
nacy—pro or con—would do better to concentrate on the real issue,
namely, the underlying conception of the Class upon which every indeter-
minacy thesis is predicated.

II

An easy case is one in which "the facts... [of the case] fit the core of the
pertinent concept-words of the rule in question [with the result that] the
application of the rule is obvious and unproblematic."15 In the language
of this article, an easy case would be one in which, given a minimalist
conception of the Class, the Class is Rationally Determinate in that case.
A minimalist conception of the Class is marked by the uncontroversial
character of its specification of the sources and the interpretive and
rational operations. That is, any conception of the Class will include (1)
constitutions, statutes, and court decisions among the sources; (2) inter-
pretation by the plain meaning of the words among the interpretive
operations; and (3) deductive reasoning among the rational operations.
The "plain meaning" of the words may not always be uncontroversial, but
some number of standard instances picked out by the concept the words
stand for are uncontroversial and constitute what Hart dubbed the "core"
of their meaning.
It is useful to confine the notion of an "easy case" to those cases that are
Rationally Determinate on a minimalist interpretation of the Class. After
all, Dworkin (at least in his earlier work) argues that the law is Globally
Rationally Determinate, but he is not supposing a minimalist conception
of the Class (he has an expansive view of the sources and an optimistic view
of the operations). Thus, Dworkin concedes that, on his view, the fact that
the law is Rationally Determinate does not rule out the possibility that
"reasonable lawyers and judges will often disagree."16 Rational Determi-
nacy, without minimalism in the characterization of the Class, makes
outcomes essentially contestable in a way that defeats the "easiness" of easy
cases.17

15. ANDREI MARMOR, INTERPRETATION AND LECAL THEORY (Oxford: Clarendon Press, 1992),
at 126.
16. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (Cambridge, Mass.: Harvard University
Press, 1977), at 81.
17. Thus, I suppose that genuinely "easy" cases are not only metaphysically determinate, but
that they are also epistemologicaUy determinate: We can be justified in saying which particular
outcome is actually correct- The fact that such an outcome exists, independent of whether we
can ever be justified in identifying it, should not be sufficient for the demarcation of "easy"
cases. (On the distinction between metaphysical and epistemological indeterminacy, seeKen
Kress, A Preface to Epistemological Indeterminacy, NORTHWESTERN UNIVERSITY LAW REVIEW 85
(1990): 134-147.)

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486 BRIAN LEITER

It is also essential to the notion of an easy case that it be easy in virtue


of its Rational Deter minacy—i.e., in virtue of the justificatory relationship
between the sources, the interpretive and rational operations, and a
unique decision. All labor disputes brought before a judge who always
decides against labor are "easy" cases in one familiar way of speaking; but
this would show nothing about the Rational Determinacy of labor law,
since these cases would not be easy in virtue of the determinacy of reasons.
What does an easy case look like? One recent writer has suggested this
example: "If I drove eighty miles per hour on the way home from w o r k . .
. I clearly would have violated laws prohibiting speeding." 18 More pre-
cisely, the following Speeding Case is an easy case:
1. Given an authoritative statute that reads, "Any person who drives faster
thanfifty-fivem.p.h. must pay a fine offiftydollars* (a legitimate source in
the minimalist Class); and
2. Given that the plain meaning of this statute is that anyone who drives faster
thanfifty-fivem.p.h. must pay a fine of fifty dollars (a legitimate interpre-
tive operation in the minimalist Class); and
3. Given the fact that I drove eighty m.p.h.; then
4. It follows necessarily (by deduction) that I must pay a fine of fifty dollars
(legitimate rational operation).
The Speeding Case, so conceived, is an easy case.
Now one could, of course, imagine complications: For, presumably, if I
drove home at eighty miles per hour in order to save my senile and invalid
grandmother trapped in our burning home in the middle of the desert
(miles from the nearest fire department), I would not be fined fifty dollars
for speeding. But these are quibbles and do not disprove the existence of
easy cases: If the facts are as I just described them, then we should simply
say that case isn't quite as easy. But the Speeding Case, as described
originally, is a paradigmatically easy case.
We should grant then what seems hard to deny: There are easy cases. But
what follows from this admission? Surely only that the thesis that the law
suffers from GfofaZIndeterminacy of Reasons is false. 19 The question then is

18. Kress, Legal Indeterimancy, at 297. Both Kress and Solum also give many examples of the
following variety: "In writing the first paragraph of this article I did not violate the antitrust
laws." Examples like this, however, can't be very persuasive; if there is a worry that indetermi-
nacy can be made to seem worse than it is by concentrating only on difficult cases self-selected
for litigation (the "selection hypothesis" argument, discussed below), surely there is a coun-
tervailing worry that cases can be made to seem easier than they really are by self-selecting
cases for their non-litigability. That the first paragraph of this article does not violate the
antitrust laws sheds very little light on whether the antitrust laws are determinate.
19. It is customary for the proponent of the easy cases argument to conflate Global Ra-
tional Indeterminacy with Rational Indeterminacy, simpUdler. Thus, Hegland: "[I] t takes just
one case in which doctrine determines outcomes to falsify the indeterminacy premise,"
GoodbyetoDeconstructionat 1210. The ease of this maneuver ought to raise questions about the
interest of the "premise" being refuted. (The premise, regrettably, has its defenders; see again
Spann, Deconstructing the Legislative Veto, and see the discussion of Tushnet, infra note 24.)

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Legal Indeterminacy 487
whether Global Indeterminacy of Reasons is a thesis anyone ought to de-
fend or whether it is the thesis that is at issue when people worry about
indeterminacy. Unquestionably, Global Indeterminacy of Reasons would
be an interesting thesis if true; but its patent falsity robs it, unsurprisingly, of
its interest. Is this a fatal blow to the challenge of indeterminacy?
The answer is "surely not." What, after all, motivates a concern about
indeterminacy? On one simple version, the underlying worry is this: If law
is indeterminate, then judges are unconstrained by law in their decision-
making.20 But the proper institutional role of judges in a democracy is
simply to apply the law and to enforce the will of the legislature.21 To the
extent, then, that judicial decision is not really constrained by law, the
legitimacy of the judicial role is called into question.22 If this is the real
worry about indeterminacy, then the only indeterminacy thesis at issue is
a certain kind of Local Indeterminacy of Reasons: to wit, that the Class is
indeterminate in the cases that require judicial intervention.
Even this, however, may be too strong: The judicial role is potentially
illegitimate—on the above construal—just in case judicial decision is un-
constrained by law some (perhaps significant) portion of the time. Let us
call "Important" Cases those in which courts decide legal analogues of
contested moral and political issues (e.g., abortion, affirmative action). In
Important Cases, it seems the public expectation for decision according to
law (i.e., Rational Determinacy) is particularly high, and thus it is here that
the legitimacy of the judicial role is most often at issue. If the law is
indeterminate in Important Cases, then the worry underlying indetermi-
nacy will be realized."
If the foregoing is correct, then two points follow. First, the truth of
Global Indeterminacy of Reasons is not necessary with respect to the
worry about the legitimacy of adjudication. All that is needed for an
interesting and worrisome claim about indeterminacy is the truth of a
certain thesis about the Local Indeterminacy of Reasons—to wit, that the
law is indeterminate in, for example, the Important Cases or, more gener-
ally, in cases that are actually adjudicated.

20. More precisely, their decisions are underdetcrmined by the Class and thus while they
may be partially constrained in the decisions that can be justified on the basis of the Class, the
ultimate choice of decision from within this group ofjustifiable decisions is unconstrained.
21. This is plainly not true of constitutional adjudication; here, judges are not supposed to
be constrained by the will of the majority as expressed through the legislature. Judges arc,
however, supposed to be constrained and, depending on one's precise theory of constitu-
tional interpretation, they may even be constrained by the will of the framers of the constitu-
tion (whether that will is manifest in historical evidence, their precise words, or the general
principles they enacted).
22. The argument supposes that the legitimacy of thejudicial role depends on the Rational
Determinacy of law. For some pertinent doubts on this score, see STEVEN J. BURTON.JUDGING IN
GOOD FAITH (Cambridge: Cambridge University Press, 1992); Kress, Legal Indeterminacy at
285-295; Coleman and Lcitcr, Determinacy, Objectivity and Authority, at 579-594.
23. This formulation should be adequate to deal with the objections lodged in Solum, On
the Indeterminacy Crisis at 489-491.

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488 BRIAN LEITER

Second, the argument from easy cases is utterly irrelevant to any inter-
esting thesis about indeterminacy for two reasons. On the one hand, the
argument from easy cases does constitute a clear refutation of the claim
that the law is Globally Rationally Indeterminate, but as long as this latter
thesis is not at issue, the argument from easy cases has no work to do on
that score. On the other hand, it is precisely the hallmark of easy cases that
they are litigated less often and thus do not come before judges for
adjudication as frequently as non-easy cases. But if the legitimacy of the
judicial role hangs—as, of course, it must—on the determinacy of law in
the cases that courts actually decide, then the Rational Determinacy of
(largely unlitigated) easy cases simply does not speak to whether many (or
most) of the cases that courts decide are or are not indeterminate.
In sum, there are easy cases,24 but this fact simply does not matter. The
only interesting thesis we need about indeterminacy concerns the Local
Rational Indeterminacy of cases actually adjudicated, not the Global Inde-
terminacy of Reasons; and easy cases are precisely not the cases that most
often come before courts (especially appellate courts). If, as I shall now
argue, the other putative "blanket" refutations of indeterminacy are really
parasitical on the argument from easy cases, and if the argument from easy
cases does no interesting work, then it would appear that considerable
argumentative energy has been expended by both proponents and critics
of indeterminacy on issues that simply do not matter.

Ill

The argument from predictability, although common,25 is either irrele-


vant to the truth of indeterminacy or simply parasitical on the (failed)

24. Many writers, often associated with Critical Legal Studies, still insist that there are no
easy cases—thus producing many of the rebukes discussed in the text For one illustrative argu-
ment of this sort, sec Mark Tushnet, The Indeterminacy Thesis, JOURNAL OF PROGRESSIVE LEGAL
THOUCHT (forthcoming). Arguments like Tushnet's against easy cases and for Global Indeter-
minacy of Reasons depend on one central move: They smuggle in an assumption about the
temporal status of the claim of determinacy. That is, critics of easy cases invariably suppose that
easy cases are rationally determinate otemporally, that they are always easy. Call this "the Atem-
porality Thesis." If we grant this thesis and we grant that the background assumptions that ren-
der easy cases easy may change, then it seems there are no easy cases and the law is Globally
Rationally Indeterminate. The difficulty, of course, is that the Atemporality Thesis seems a
wildly implausible one: If we are worried about the legitimacy of adjudication in the present,
why should it matter that cases now easy will one day be hard? Easy cases are, admittedly, tempo-
rally easy, but that is the only sort of easiness that has ever been claimed for them. Cf. Robert
Justin LJpkin, Beyond Skepticism, Foundationalism andtheNewFuxdness: The Role of Wide Reflective
Equilibrium in Legal Theory, CORNELL LAW REVIEW 75 (1990): 811-877, and at 824, note 48.
25. See, e.g., Kress, Legal Indeterminacy, at 324-326; Solum, On the Indeterminacy Crisis, at
482-483; John Stick, Can Nihilism Be Pragmatic?, HARVARD LAW REVIEW 100 (1986): 332-401,
esp. at 358; David Wilkins, Legal Realismfor Lawyers, HARVARD LAW REVIEW 104 (1990): 468-524,
esp. at 484. A number of these discussions involve a persistent and unnoted conflation of
Rational Indeterminacy with Causal Indeterminacy.

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Legal Indeterminacy 489
argument from easy cases. There is, in short, no predictability argument
against indeterminacy.
Construed as an autonomous argument, the argument from predict-
ability runs as follows:

1. Some legal outcomes are predictable.


2. But if the law were indeterminate, no legal outcomes would be predictable.
3. Therefore, the law is not indeterminate.

The difficulty with this line of argument, however, is that 2 is false: Nothing
in the claim that the law is Rationally Indeterminate (locally or globally)
presupposes that outcomes aren't predictable.26 The claim that the Class
is Rationally Indeterminate presupposes only that outcomes aren't pre-
dictable solely on the basis of the Class™ That is, the claim that the law is
Rationally Indeterminate is compatible with the predictability of judicial
decision as long as the factors that form the basis of prediction are not
members of the Class.28 So, for example, the suggestion found in the work
of Underhill Moore 29 that judicial decisions in commercial disputes could
be predicted on the basis of how far the challenged practices had deviated
from the norm prevailing in the commercial culture—regardless of the
applicable legal rules and standards—amounts to the claim that judicial
decision (at least in the area of commercial law) is predictable even if the
Class is Rationally Indeterminate.**
Predictability/*r«; then, is not a "potential embarrassment"^ to inde-
terminacy; it is simply irrelevant to indeterminacy.
Predictability solely on the basis of the Class—i.e., on the basis of
legal rules and reasons—would refute the thesis that the law suffers from
Global Indeterminacy of Reasons. But predictability in virtue of legal
rules and reasons is only possible in easy cases, so that the fact of pre-

26. To the contrary, most Legal Realists clearly hoped and believed that they were. See my
Legal Realism.
27. Outcomes may be Causally Determinate, even if the Class itself (together with the
Relevant Background Conditions) is Causally Indeterminate.
28. Cf. Frederick Schauer, Rules and the Rule of Law, HARVARD JOURNAL OF LAW AND PUBLIC
POLICY 14 (1991): 645-694, esp. at 660, note 25; KENT GREENAWALT, LAW AND OBJECTIVITY (New
York: Oxford University Press, 1992), at 39.
29. See Underhill Moore and Theodore S. Hope, Jr., An Institutional Approach to the Law of
Commercial Banking, YALE LAW JOURNAL 38 (1929): 703-719; Underhill Moore and Gilbert
Susjman. Legal and Institutional Methods Applied to the Debiting of Direct Discounts II: Institutional
Method, YALE LAW JOURNAL 40 (1931): 555-575. Cf. KARL LLWELLYN, THE COMMON LAW TRADI-
TlON (Boston: Little, Brown & Co., 1960) and my discussion in Legal Realism.
30. Moore often seemed to view legal reasons as epiphenomenal (hence, causally ineffica-
cious) and thus did not himself devote much attention to die claim that the law is Rationally
Indeterminate. See, again, my Legal Realism.
31. Kress, Legal Indeterminacy, at 325.

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490 BRIAN LEITER

dictability itself adds nothing to the earlier (inapposite) argument from


easy cases. 32
Predictability oflegal outcomes, then, is a non-starter in the indetermi-
nacy debate.

IV

According to the "selection hypothesis,"

. . . litigation is largely restricted to the unrepresentative sample of legal


events in which plausible legal arguments can be made on both sides... .33

Note that the selection hypothesis by itself does not have any bearing
on the truth of the claim that the law is Rationally Indeterminate; instead,
it invites skepticism about the evidence for this claim. As Fred Schauer
explains:

[I]t is a mistake to generalize about the nature of constraint by rule from


this nonrepresentative sample, selected precisely on the basis of the charac-
teristic that would reject the claim that legal events are or can be con-
strained by rule.34

32. What if prediction were possible on the basis of a non-minimalistic conception of the
Class, a conception excluded from the earlier definition of easy cases? The difficulty, as we saw
in the discussion of Dworkin, is that the further one moves away from minimalism in the
characterization of the Class, the more contestable the "correctness" of any particular out-
come becomes, and thus the less certain one's basis for prediction becomes. (For reliable
prediction—an epistemic achievement—we need epistemological determinacy, not simply
metaphysical determinacy.) Only with easy cases do we conjoin rational determinacy with
non-contestability in a way that provides a firm anchor for prediction.
33. Schauer, Rules and the Rule of Law, at 659, note 24. Schauer notes that the "modem
articulation and development" of the selection hypothesis is due to George Priest and Ben-
jamin Klein, The Selection ofDispulesforU(igati(m,]oui(NALOFlxcXLSTVDlES 13 (1984): 1-55.
Priest and Klein's hypothesis is actually somewhat different from Schauer's version (which is,
however, most relevant to the jurisprudential concerns here). Priest and Klein argue that
litigation is restricted to the unrepresenutive (but not random) sample of legal events for
which the relevant "decision standard" does not make a rational estimate or prediction of the
likely outcome possible. But "the decision standard" "may be based on legal precedent or, say,
the personal bias (for example, racial prejudice) of a judge or jury." Id. at 7. Thus, in the
language employed here, we may say that the Priest and Klein hypothesis is that the cases
selected for litigation are those that are causally indeterminate either (1) because the law on
point is rationally indeterminate (hence the Class is causally indeterminate) and no other
psychosodal fact about judge or jury makes the decision approximate causal determinacy
(hence no other psychosodal fact makes reliable prediction possible); or (2) because the law
on point is rationally determinate, but some other psychosodal fact about judge or jury
renders prediction impossible (i.e., the Background Conditions do not obtain). Thus, on the
Priest and Klein hypothesis, it is only (1) those rationally indeterminate cases for which no
additional nonlegal fact (e.g., aboutjury bias) makes reliable prediction possible, or (2) those
rationally determinate cases for which some additional non-legal fact (e.g., about possiblejury
bias) makes reliable prediction impossible that are typically selected for litigation.
34. Rules and the Rule ofLaw, al 659,note 24.

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Legal Indeterminacy 491
That is, if appellate decisions are the evidence for the claim that the law is
Rationally Indeterminate, then the evidence is suspect because the cases
selected for appellate review are precisely those in which the law is most
likely to be Rationally Indeterminate.
The phenomenon identified by the selection hypothesis, as Schauer
himself notes,35 has been remarked upon by many writers.36 Indeed, even
the Legal Realists were well aware of it Thus, Llewellyn explicitly qualified
his defense of the indeterminacy of law by saying that uin any case doubtful
enough to make litigation respectable the available authoritative premises . . .
are at least two, and . . . the two are mutually contradictory as applied to
the case at hand."37 And even so glib a defender of indeterminacy as Max
Radin could observe that judicial

[decisions will consequently be called for chiefly in what may be called


marginal cases, in which prognosis is difficult and uncertain. It is this feet
that makes the entire body oflegal judgments seem less stable than it really
38

Is it consistent to embrace both the selection hypothesis and the claim that
the law is Rationally Indeterminate? I argue that it is, and that its consis-
tency demonstrates the irrelevance of the argument from the selection
hypothesis.
That indeterminate cases are selected for litigation does not show that
the claim that the law is Rationally Indeterminate is false without the
additional assumption that there are determinate cases that, precisely
because of their rational determinacy, are not typically litigated. Such an
assumption is surely plausible, but it just amounts to the assumption that
there are easy cases,39 cases that parties would be far less likely to litigate.
So the selection hypothesis is not an independent argument against inde-
terminacy; rather, it alerts the jurisprudent to a feature of the sampling
procedure that may obscure the existence of easy cases. So the selection
hypothesis, in conjunction with the hypothesis that there are easy cases

35. Id.
36. See, e.g, Kress, Legal Indeterminacy, at 336; Solum, On the Indeterminacy Crisis, at 4%;
Richard Posncr, Thejurisprudence ofSkepticism, MICHIGAN LAW REVIEW 86 (1988): 827-891, csp.
at 840; RICHARD POSNER, THE PROBLEMS OFJURISPRUDENCE (Cambridge, Mass.: Harvard Univer-
sity Press, 1990), at 78.
37. Karl Llewellyn, Some Realism About Realism—Responding to Dean Pound, HARVARD LAW
REVIEW 44 (1931): 1222-1264,at 1239 (emphasis added).
38. Max Radin, In Defense of an Unsystematic Science of Law, \ALE LAW JOURNAL 51 (1942):
1269-1279, at 1271. See also LLEWELLYN, THE COMMON LAW TRADITION at 4 (noting that the
courts typically have to deal with "disputes self-selected for their toughness").
• 39. These cases can be "easy" based on any interpretation of the Class (minimalistic or
non-minimalistic), because the key assumption here is simply that the cases are rationaUy
determinate (i.e., that they are metaphysically determinate, not necessarily epistemologically
determinate).

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492 BRIAN LEITER

(generally unselected for litigation), suggests that the claim that the law
suffers from Global Indeterminacy of Reasons is false. But that thesis, as
already argued, is not necessary for any interesting claim about the inde-
terminacy of law.
The selection hypothesis, then, does not constitute an independent argu-
ment against indeterminacy, and even in conjunction with the argument
from easy cases, it does not constitute a relevant argument against the
interesting claim that the law suffers from Local Indeterminacy of Rea-
sons.

In sum, the voluminous debate surrounding easy cases, the predictability


of legal outcomes, and the selection hypothesis has been beside the point
with respect to the potentially worrisome thesis that the law suffers from
Local Indeterminacy of Reasons. The truth of this latter thesis depends
entirely on the conception of the Class on which such a thesis is grounded.
And this means, in turn, that the real debate about indeterminacy is, in
fact, coextensive with the debates already central to analytic jurispru-
dence, for example, about the legitimate sources of law and the legitimate
ways of interpreting statutes or precedents. A defense of legal indetermi-
nacy, then, requires the articulation of a comprehensive theory of law and
adjudication, one that specifies the contours of the Class.40 To date, only
those working within the tradition of legal positivism have even tried to
provide such an account; all other putative "defenses" of indetermi-
nacy—of which there are surprisingly many—have yet really to join issue
with the question.

40. On the failings of Realism in this regard, see my Legal Realism, op at.

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