Does the Law Ever Run Out?

Abstract

Although laypeople commonly believe that a judge’s job is to decide every case as the law requires, a broad consensus exists among legal scholars that the law not infrequently “runs out,” leaving the judge with no choice but to settle the dispute on extralegal grounds. Yet that consensus is hard to square with the plausible claim that deciding even close cases by coin toss is not only morally but legally improper. If the law runs out and neither outcome is better than the other, then the judge has no choice but to decide the case arbitrarily and thus cannot be criticized for doing so. And if one outcome is better, then the assumption that the law runs out is inconsistent with the existence of a legal norm against arbitrary decisionmaking (because that norm would require selecting the better outcome) and thus with the claim that deciding the case arbitrarily is legally improper. 

This Article offers a tentative defense of the popular idea that the judge’s job in every case is to follow the law to an outcome. The Article examines the features of the law that allegedly cause it to run out, including permissive rules, balancing tests, vagueness, ambiguity, silence, contradictions, and uncertainty. Tentatively, the Article concludes that none of these features causes the law to run out. More confidently, it maintains that the extent, if any, to which the law runs out depends on difficult issues in the philosophy of law, language, and value—issues that parties to the consensus that the law runs out in a significant range of cases do not appear to have worked through to resolution.

When, if ever, the law runs out has important implications for judicial ethics, for the scope of Auer deference and other legal doctrines, and for adjacent scholarly debates such as the debate over the interpretation-construction distinction.

Keywords: legal formalism, legal realism, vagueness, ambiguity, epistemicism, law and philosophy, judicial discretion, legal indeterminacy, public trust, auer deference