Reading Notes--mostly précis and summary!
Adam Kissel

This paper limits the range of reasons that cases can be called "indeterminate" and limits the number of cases that genuinely are indeterminate.

The indeterminacy thesis challenges our notion of "the rule of law" and claims that our existing legal system is so textured by rules and counter-rules that a judge can justify any desired result. This thesis is widely embraced, though it is untenable. Of course "existing legal rules are not fully determined by any unified and consistent social theory," but "some specific legal rules may necessary follow from a broad social theory."

The thesis seems to derive from the "mystification thesis" that laws veil "structures of domination." Mystification may occur primarily as a legitimating of current practices via reason, tradition, or emotion; or as dissimulation, a masking of domination by a proposed neutrality of the law. Mystification by masking aids politics and prevents genuine determinacy.

"Easy cases" are those in which it is clear that the law is determinate: "walking one's dog does not violate the antitrust laws." As complicating factors are introduced to some easy cases, the law appears "underdeterminate," in which the range of rulings is still limited. Sometimes there is such confusion that the law is fully "indeterminate" in that any possible ruling could follow. When people argue at the margins of a law, they merely point out its underdeterminacy rather than a thorough indeterminacy. A "hard case" is almost always underdeterminate rather than indeterminate. This argument defeats the "internal skeptics."

The "external skeptics" argue that because language is hopelessly indeterminate, every law is as well. But this complete destruction of meaning falls into meaninglessness itself: "it has no existential force." The same is true about "epistemological skepticsm" which claims that any knowledge is impossible. To the extent that knowledge and rules are socially agreed upon by a community, however, the meaning of language and laws can shift somewhat over time, though not to the extent that some indeterminists suggest. The deconstructionist argument, that in hard cases, ideals of community and autonomy are contradictory, goes overboard (and does not apply to easy and determinate cases at all); the ideals are merely in competition, and so law need not hopelessly deconstruct itself.

Epiphenomenalists argue that decisions are reached independently of laws, which are only adduced later. Granted, "the legal superstructure interacts with social, political, and economic institutions," but this is only to say that law finds a rightful place in society. Epiphenomenalists provide no account of how non-legal forces (ideology or psychological effects) circumvent legal principles in the judgments of judges.

Many arguments that the "important" or "interesting" cases are indeterminate are circular. The most that can be said here is that most things that happen in the world are obviously covered by the determinacy of the law, and that only marginal situations (or easily-won cases with a practical benefit to one party) make it to court.

Just because we can imagine alternate worlds in which a law becomes indeterminate, those worlds have no effect on laws in our world. Granted, ideological pressure affects particular cases, but it is left to be seen how many cases realistically are affected by it.

The most that can be said is that legal doctrine underdetermines the results, and this only in some subset of cases. Many outcomes are not rule-bound, but all are still rule-guided to some extent. (Cf. Winter on nondetermined, culturally-bound law.) Disputants will seldom or never abandon some sense of determinacy about the law.

Legal formalism is easily refuted by showing underdeterminacy (which the legal realists did), and this success seems to have spurred the dogma of indeterminacy. Also, legal scholars tend to forget that appellate decisions, a main source of their legal knowledge in casebooks, are only an odd and very small subset of all the reasonable applications of the law. "Only a tiny percentage of the published decisions [of appealed cases] are of sufficient interest to warrant inclusion in a casebook," and so the casebook is nearly hopelessly skewed in favor of widespread indeterminacy.

"The notion that it is possible to achieve radical results working with the existing body of legal doctrine--because the seeming constraints are illusory--has powerful attraction for those committed to social change, but whose professional lives are confined to the academy and not the capitol buildings" (497). It seems easier to attack the rules than the policies.

The strong indeterminacy thesis deflects an internal critique of the law because it disengages itself from the conventional forms of discourse. Therefore law would lose its positive emancipatory potential, which seems to be what indeterminists are hoping for in the first place; emancipation would have to happen completely apart from its supposed power plays. Abandoning legality, moreover, can lead as well to tyranny as freedom.

Once the indeterminacy thesis is scraped away from the mystification thesis, we are left with a powerful "tool of delegitimation .... If more progressive doctrine can produce more humane decisions, then there is a good reason to change the law." We "are right to identify significant zones of underdetermination and contingency in legal doctrine." Finally, partially delegitimating the courts does not delegitimize the liberal state, but may even buttress its power of tyranny through non-legal means.