The Variable Determinacy Thesis

by Harry Surden
12 Colum. Sci. & Tech. L. Rev. 1 (2011) (Published April 4, 2011)

Abstract

This Article proposes a novel technique for characterizing the relative determinacy of legal decision-making.  I begin with the observation that the determinacy of legal outcomes varies from context to context within the law.  To augment this intuition, I develop a theoretical model of determinate legal decision-making.  This model aims to capture the essential features that are typically associated with the concept of legal determinacy.  I then argue that we can use such an idealized model as a standard for expressing the relative determinacy or indeterminacy of decision-making in actual, observed legal contexts.  From a legal theory standpoint, this approach – separating determinacy and indeterminacy into their constituent conceptual elements – helps us to more rigorously define these theoretical ideas.  Ultimately, from a practical standpoint, I assert that this framework assists in understanding why legal outcomes in certain contexts are determinate enough to be amenable to resolution by computers.

About the Author

Associate Professor, University of Colorado Law School, B.A. Cornell University; J.D. Stanford University.

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