64 Pages Posted: 11 Oct 2017 Last revised: 30 May 2018
Date Written: October 10, 2017
Courts sometimes confront gaps in formal law, where doctrinal sources like text, history, and precedent offer no guidance in resolving a particular case. When these gaps are narrow, judges can generally address them through analogical reasoning or intuition. But sometimes legal gaps are too substantial to be filled with one-off decisions, and judges are called upon to create whole legal tests without formal guidance or constraint. Courts lack a theoretical framework for addressing these difficult situations.
This Article analyzes these phenomena, which I refer to as legal blank slates, and provides a framework for addressing them. Blank slates are less common than other types of legal indeterminacy, like interpretive controversies, institutional conflicts, or narrow formal gaps. But they arise fairly regularly and often involve important legal issues. This Article surveys examples of blank slates in areas like Fourth Amendment law, free speech, the dormant Commerce Clause, and anti-discrimination law and draws lessons for a general theory of blank slates. It offers several strategies that courts might use to effectively address blank slates and develops a framework for choosing the best approach for a given situation.
Ultimately, blank slate theory can shed light on concrete doctrinal questions as well as broader debates about legal interpretation. It can, for example, suggest a new approach for determining the Fourth Amendment’s scope and help explain why previous Fourth Amendment regimes have been unsuccessful. More generally, the theory can provide a unique perspective on interpretive debates, using the extreme case of blank slates to gain fresh insights into legal interpretation as a whole.
Keywords: legal theory, indeterminacy, fourth amendment, first amendment, commerce clause, dormant commerce clause, sexual harassment, underdeterminacy, jurisprudence, common law
JEL Classification: K40, K14
Suggested Citation: Suggested Citation