1. This formulation of the claim of Rational Indeterminacy has the virtue of being neutral as between indeterminacy and underdeterminacy. The law is indeterminate insofar as any outcome can be justified on the basis of the Class; the law is underdeterminate insofar as more than one, but not simply any, outcome can be justified on the basis of the Class. For those who are worried about the legitimacy of adjudication, however, this distinction does not matter: All that is needed (as I discuss below) is the claim of Rational Indeterminacy as formulated in the text Lawrence Solum, for one, makes far too much out of this distinction and thus effectively misses the point of most indeterminacy arguments. See Solum, Lawrence B., On the Indeterminacy Crisis: Critiquing Critical Dogma, University of Chicago Law Review 54 (1987): 462–503, esp. at 474–475.CrossRefGoogle Scholar Solum himself even ends up conceding the Rational Indeterminacy of law in my sense “in many, but not all, actual cases.” Id. at 494.

2. Though some Legal Realists did like to make precisely this point: cf. Frank, Jerome, Are Judges Human? Part Two, University of Pennsylvania Law Review 80 (1931): 233–267.CrossRefGoogle Scholar

3. See, generally, my discussion of Legal Realism, in Patterson, D. M. (ed.), A Companion to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 1995).Google Scholar

4. See, e.g., Rational Basis of Legal Institutions, Columbia Law Review 23 (1923): 609–617Google Scholar; cf. the discussion in Leiter, Legal Realism.

5. Note that thesis (X) is compatible with the Humean thesis that our fundamental beliefs—e.g., in causation—do not admit of rational vindication. For even on the Humean picture, we must appeal to an additional factor (human nature, human sentiment, habit) to explain the fact that we believe in causation despite the absence of complete rational justification.

6. Llewellyn, Karl, Remarks on the Theory of Appellatt Decision and the Rules or Canons About How Statutes Are to be Construed, Vanderbilt Law Review 3 (1950): 395–406.Google Scholar For the analagous argument regarding the interpretation of prior court decisions, see Llewellin, Karl, The Bramble Bush (New York: Oceana, 1930), 72–76.Google Scholar

7. Cf. Kripke, Saul, Wittgenstein on Rules and Private Language (Cambridge, Mass.: Harvard University Press, 1982).Google Scholar On the deficiencies of the skeptical interpretation, see Wright, Crispin, Kripke's Account of the Argument Against Private Language, Journal of Philosophy 81 (1984): 759–778.CrossRefGoogle Scholar

8. Cf. Dalton, Clare, An Essay in the Deconstruction of Contract Doctrine, Yale Law Journal 94 (1985): 997–1114CrossRefGoogle Scholar; Peller, Gary, The Metaphysics of American Law, California Law Review 73 (1985): 1151–1290. esp. at 1160–1170.CrossRefGoogle Scholar

9. This argument for the General Rational Indeterminacy of law is actually a bad one as some writers have noted. See Michelman, Frank I., Politics as Medicine: On Misdiagnosing Legal Scholarship, Yale Law Journal 90 (1981): 1224–1228, esp. at 1227CrossRefGoogle Scholar; Coleman, Jules L. and Leiter, Brian, Determinacy, Objectivity and Authority, University of Pennsylvania Law Review 142 (1993): 549–637, esp. at 571–572.CrossRefGoogle Scholar

10. It is a common mistake to suppose that this is the central indeterminacy theme in the writings of the Legal Realists. I discuss this issue at some length in an unpublished paper on “Legal Realism and the Varieties of Legal Indeterminacy,” in which some of the other themes in this section are also developed at greater length.

11. This general strategy of argument has been deployed—not convincingly to my mind—against indeterminacy in Kress, Ken, Legal Indeterminacy, California Law Review 77 (1989): 283–337.CrossRefGoogle Scholar

12. Cf. Tushnet, Mark, Following the Rules Laid Down: A Critique of Interpretivisn and Neutral Principles, Harvard Law Review 96 (1983): 781–827, esp. at 818–819CrossRefGoogle Scholar; Unger, Roberto, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard University Press, 1986), esp. at 8–11.Google Scholar

13. Sunstein, Cass, On Analogical Reasoning, Harvard Law Review 106 (1993): 741–791.CrossRefGoogle Scholar

14. See, e.g., Kress, , Legal IndeterminacyGoogle Scholar; Solum, , On the Indeterminacy CrisisGoogle Scholar; Schauer, Frederick, Easy Cases, Southern California Law Review 58 (1985): 399–440Google Scholar; Hegland, Kenney, Goodbye to Deconstruction, Southern California Law Review 58 (1985): 1203–1221Google Scholar; Brosnan, Donald F., Serious But Not Critical, Southern California Law Review 60 (1987): 259–396, esp. at 353.Google Scholar Many of these writers are, of course, responding to correspondingly implausible claims about indeterminacy in the literature of Critical Legal Studies. See, e.g., Spann, Girardeau, Deconstructing the Legislative Veto, Minnesota Law Review 68 (1984): 473–544.Google Scholar

15. Marmor, Andrei, Interpretation and Legal Theory (Oxford: Clarendon Press, 1992), at 126.Google Scholar

16. Dworkin, Ronald, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press. 1977), at 81.Google Scholar

17. Thus, I suppose that genuinely “easy” cases are not only metaphysically determinate, but that they are also epistemologically determinate: We can be justified in saying which particular outcome is actually correct The fact that such an outcome exists, independent of whether we can ever be justified in identifying it, should not be sufficient for the demarcation of “easy” cases. (On the distinction between metaphysical and epistemological indeterminacy, see Kress, Ken, A Preface to Epistemological Indeterminacy, Northwestern University Law Review 85 (1990): 134–147.)Google Scholar

18. Kress, , Legal Indeterimancy, at 297.Google Scholar Both Kress and Solum also give many examples of the following variety: “In writing the first paragraph of this article I did not violate the antitrust laws.” Examples like this, however, can't be very persuasive; if there is a worry that indeterminacy can be made to seem worse than it is by concentrating only on difficult cases self-selected for litigation (the “selection hypothesis” argument, discussed below), surely there is a countervailing worry that cases can be made to seem easier than they really are by self-selecting cases for their non-litigability. That the first paragraph of this article does not violate the antitrust laws sheds very little light on whether the antitrust laws are determinate.

19. It is customary for the proponent of the easy cases argument to conflate Global Rational Indeterminacy with Rational Indeterminacy, simpliciter. Thus, Hegland: “[I] t takes just one case in which doctrine determines outcomes to falsify the indeterminacy premise,” Goodbye to Deconstraction at 1210.Google Scholar The case of this maneuver ought to raise questions about the interest of the “premise” being refuted. (The premise, regrettably, has its defenders; see again Spann, Deconstructing the Legislative Veto, and see the discussion of Tushnet, infra note 24.)

20. More precisely, their decisions are underdetermined by the Class and thus while they may be partially constrained in the decisions that can be justified on the basis of the Class, the ultimate choice of decision from within this group of justifiable decisions is unconstrained.

21. This is plainly not true of constitutional adjudication; here, judges are not supposed to be constrained by the will of the majority as expressed through the legislature. Judges are, however, supposed to be constrained and, depending on one's precise theory of constitutional interpretation, they may even be constrained by the will of the framers of the constitution (whether that will is manifest in historical evidence, their precise words, or the general principles they enacted).

22. The argument supposes that the legitimacy of the judicial role depends on the Rational Determinacy of law. For some pertinent doubts on this score, see Burton, Steven J., Judging in Good Faith (Cambridge: Cambridge University Press, 1992)CrossRefGoogle Scholar; Kress, , Legal Indeterminacy at 285–295Google Scholar; Coleman, and Leiter, , Determinacy, Objectivity and Authority, at 579–594.Google Scholar

23. This formulation should be adequate to deal with the objections lodged in Solum, , On the Indeterminacy Crisis at 489–491.Google Scholar

24. Many writers, often associated with Critical Legal Studies, still insist that there are no easy cases—thus producing many of the rebukes discussed in the text For one illustrative argument of this sort, see Tushnet, Mark, The Indeterminacy Thesis, Journal of Progressive Legal Thought (forthcoming).Google Scholar Arguments like Tushnet's against easy cases and for Global Indeterminacy of Reasons depend on one central move: They smuggle in an assumption about the temporal status of the claim of detcrrmnacy. That is, critics of easy cases invariably suppose that easy cases are rationally determinate atemporally, that they are always easy. Call this “the Atemporality Thesis.” If we grant this thesis and we grant that the background assumptions that render easy cases easy may change, then it seems there are no easy cases and the law is Globally Rationally Indeterminate. The difficulty, of course, is that the Atemporality Thesis seems a wildly implausible one: If we are worried about the legitimacy of adjudication in the present, why should it matter that cases now easy will one day be hard? Easy cases are, admittedly, temporally easy, but that is the only sort of easiness that has ever been claimed for them. Cf. Lipkin, Robert Justin, Beyond Skepticism, Foundationalism and the New Fuzziness: The Role of Wide Reflective Equilibrium in Legal Theory, Cornell Law Review 75 (1990): 811–877, and at 824. note 48.Google Scholar

25. See, e.g., Kress, , Legal Indeterminacy, at 324–326Google Scholar; Solum, , On the Indeterminacy Crisis, at 482–483Google Scholar; Stick, John, Can Nihilism Be Pragmatic?, Harvard Law Review 100 (1986): 332–401, esp. at 358CrossRefGoogle Scholar; Wilkins, David, Legal Realism for Lawyers, Harvard Law Review 104 (1990): 468–524, esp. at 484.CrossRefGoogle Scholar A number of these discussions involve a persistent and unnoted conflation of Rational Indeterminacy with Casual Indeterminacy.

26. To the contrary, most Legal Realists clearly hoped and believed that they were. See my Legal Realism.

27. Outcomes may be Causally Determinate, even if the Class Itself (together with the Relevant Background Conditions) is Causally Indeterminate.

28. Cf. Schauer, Frederick, Rules and the Rule of Law, Harvard Journal of Law and Public Policy 14 (1991): 645–694. esp. at 660. note 25Google Scholar; Greenawalt, Kent, Law and Objectivity (New York: Oxford University Press. 1992). at 39.Google Scholar

29. See Moore, Underhill and Hope, Theodore S. Jr., An Institutional Approach to the Law of Commercial Banking, Yale Law Journal 38 (1929): 703–719CrossRefGoogle Scholar; Moore, Underhill and Sussman, Gilbert, Legal and Institutional Methods Applied to the Debiting of Direct Discounts II: Institutional Method, Yale Law Journal 40 (1931): 555–575.CrossRefGoogle ScholarCf. Llwellyn, Karl, The Common Law Tradition (Boston: Little, Brown & Co., 1960)Google Scholar and my discussion in Legal Realism.

30. Moore often seemed to view legal reasons as epiphenomenal (hence, causally inefficacious) and thus did not himself devote much attention to the claim that the law is Rationally Indeterminate. See, again, my Legal Realism.

31. Kress, , Legal Indeterminacy, at 325.Google Scholar

32. What if prediction were possible on the basis of a non-minimalistic conception of the Class, a conception excluded from the earlier definition of easy cases? The difficulty, as we saw in the discussion of Dworkin, is that the further one moves away from minimalism in the characterization of the Class, the more contestable the “correctness” of any particular outcome becomes, and thus the less certain one's basis for prediction becomes. (For reliable prediction—an epistemic achievement—we need epistemological determinacy, not simply metaphysical determinacy.) Only with easy cases do we conjoin rational determinacy with non-contestability in a way that provides a firm anchor for prediction.

33. Schauer, , Rules and the Rule of Law at 659, note 24.Google Scholar Schauer notes that the “modern articulation and development” of the selection hypothesis is due to Priest, George and Klein, Benjamin, The Selection of Disputes for litigation, Journal of Legal Studies 13 (1984): 1–55.CrossRefGoogle Scholar Priest and Klein's hypothesis is actually somewhat different from Schauer's version (which is, however, most relevant to the jurisprudential concerns here). Priest and Klein argue that litigation is restricted to the unrepresentative (but not random) sample of legal events for which the relevant “decision standard” does not make a rational estimate or prediction of the likely outcome possible. But “the decision standard” “may be based on legal precedent or, say, the personal bias (for example, racial prejudice) of a judge or jury.” Id. at 7. Thus, in the language employed here, we may say that the Priest and Klein hypothesis is that the cases selected for litigation are those that are causally indeterminate either (1) because the law on point is rationally indeterminate (hence the Class is causally indeterminate) and no other psychosocial fact about judge or jury makes the decision approximate causal determinacy (hence no other psychosocial fact makes reliable prediction possible); or (2) because the law on point is rationally determinate, but some other psychosodal fact about judge or jury renden prediction impossible (i.e., the Background Conditions do not obtain). Thus, on the Priest and Klein hypothesis, it is only (1) those rationally indeterminate cases for which no additional nonlegal fact (e.g., about jury bias) makes reliable prediction possible, or (2) those rationally determinate cases for which some additional non-legal fact (e.g., about possible jury bias) makes reliable prediction impossible that are typically selected for litigation.

34. Rules and the Rules ofLaw, at 659, note 24.Google Scholar

35. Id.

36. See, e.g., Kress, , Legal Indeterminacy, at 336Google Scholar; Solum, , On the Indeterminacy Crisis, at 496Google Scholar; Posner, Richard, The jurisprudenct of Skepticism, Michigan Law Review 86 (1988): 827–891, esp. at 840CrossRefGoogle Scholar; Posner, Richard, The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1990), at 78.Google Scholar

37. Llewellyn, Karl, Some Realism About Realism—Responding to Dean Pound, Harvard Law Review 44 (1931): 1222–1264, at 1239 (emphasis added).CrossRefGoogle Scholar

38. Radin, Max, In Defense of an Unsystematic Science of Law, Yale Law Journal 51 (1942): 1269–1279. at 1271.CrossRefGoogle ScholarSee also Llewellyn, , The Common Law Tradition at 4Google Scholar (noting that the courts typically have to deal with “disputes self-selected for their toughness”).

39. These cases can be “easy” based on any interpretation of the Class (minimalistic or non-minimalistic), because the key assumption here is simply that the cases are rationally determinate (i.e., that they are metaphysically determinate, not necessarily epistemologically determinate).

40. On the failings of Realism in this regard, see my Legal Realism. op cit.