Against Certainty

Abstract:     
In legal argumentation, appeals to certainty and predictability have enormous rhetorical power. This Article argues that their use outstrips their legitimate role in legal analysis. The Article is not literally “against certainty” in the sense that it promotes uncertainty as a good thing in itself; it is just a skeptical consideration of the role of appeals to certainty in legal theory. The Article’s principal contention is that arguments about certainty are often mistaken, that certainty itself is often misunderstood, and that many defenses of certainty in legal rules are tautological, irrelevant, or substantively overstated.

Number of Pages in PDF File: 40

Keywords: certainty, formalism, predictability, precedent, reliance, uncertainty, legal theory, common law

JEL Classification: K10, K12, K13, K19, K00, K40

Accepted Paper Series