Indeterminacy and Good Faith: Politics and Legitimacy

Abstract

The paper, which will be published in Droit et Philosophie, briefly considers three “moments” of the legal indeterminacy debate, in order to gain an overview of the debate’s issues and themes:

(1) Joseph Hutcheson’s discussion of “hunches” in judicial decision-making, with the implications that fact about decision-making may have for legal indeterminacy; (2) Mark Tushnet’s work on advocacy and legal outcomes, showing the importance of focusing on (in)determinacy over the longer term; and (3) the work of various empirical political science theorists constructing an “attitudinal model” of judicial decision-making (along with other related empirical work), displaying how judges’ political inclinations (and other extralegal factors) explain outcomes in a large class of cases. All three topics raise serious concerns of a “rule of law” or “legitimacy” nature.

Keywords: legal reasoning, legal determinacy, attitudinal model