Legal Theory Blog

Solum on the Indeterminacy Thesis

Lawrence B. Solum (University of Illinois - College of Law) has posted On the Intderminacy Crisis: Critiquing Critical Dogma (University of Chicago Law Review, Vol. 54, No. 462, 1987) on SSRN. Here is the abstract:

This essay investigates the indeterminacy thesis - roughly the claim that the content of authoritative legal materials (such as the texts of constitutions, statutes, cases, rules, and regulations) does not determine the outcome of particular legal disputes. The indeterminacy thesis can be formulated as either "strong" or weak." The strong version of the indeterminacy thesis is demonstrably false, but several weak versions of the thesis are true but lack the radical implications of strong indeterminacy.

The strong indeterminacy thesis is the claim that all cases are "hard" cases - or that in any case any conceivable result can be derived from existing legal doctrine. Strong indeterminacy does not hold if there are easy cases - cases in which some outcomes cannot be legally correct. For example, if it were the case that the first paragraph of this abstract did not slander Gore Vidal, then there would be at least one easy case, and strong indeterminacy would be false.

Weak versions of the indeterminacy thesis include the claim that important cases are indeterminate, that the law does not necessarily determine outcomes, or that every case could become indeterminate if political conditions supported indeterminacy. These weaker claims may be true, but they lack the critical bite associated with strong indeterminacy.

The essay also distinguishes between "determinacy," "indeterminacy," and "underdeterminacy." The law is "determinate" with respect to a given case if and only if the set of results that can be squared with the legal materials contains only one member. The law is "indeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is identical with the set of all imaginable results. The law is "underdeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is a nonidentical subset of the set of all imaginable results.

This was my first post-law-school publication.

McCluskey on Feminist Jurisprudence & Queer Legal Theory

Martha T. McCluskey (University at Buffalo - Law School) has posted Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations on SSRN.  Here is the abstract:

Some strands of queer theory have echoed conservative law-and-economics (neoliberalism) in criticizing feminism's turn to the state and to moral principle to solve problems of dependency and dominance. But on closer analysis, queer anti-statism and anti-moralism itself relies on and reinforces the identity conventions and regulatory constraints it claims to unsettle. The meaningful question for queer theory, for feminism, and for legal economics, is what kind of state and morality to pursue, not whether individual choice and private power is better than value-laden state regulation.

First, queer anti-statism risks joining neoliberalism in celebrating and naturalizing an imagined space of private bargaining free from state regulation. In rejecting liberal claims of state-protected rights, queer theory relies on a standard law-and-economics argument: all rights have costs. Rights to family leave, for example, may give only the illusion of state protection for workers with family responsibilities, because workers may "pay" for state-protected family leave with lower wages, fewer jobs, fewer promotions or more discrimination against women. However, a critical perspective should also recognize the converse: that all costs have rights. The private power that makes us skeptical of rights is not outside the state but produced by it.

Second, queer anti-moralism joins neoliberalism in masking the moral judgments that shape whose claims to protection against injury get privileged as "good" acts of rational self-interest maximizing by freely choosing individuals and whose injury claims get disparaged as unproductive sentimental weakness that constrain individual freedom.

Pruitt on Critical Geography & Rural Women

Lisa R. Pruitt (University of California, Davis - School of Law) has posted Of Spaces and Spheres: What Critical Geography Can Teach Law about Rural Women on SSRN. Here is the abstract:

Like other legal scholars, feminists often think about social change over time, using history as a lens to reveal disadvantage and injustice. They have demonstrated, for example, that the public/private divide and related separate spheres ideology are socially contingent developments based on evolving perceptions of women and gender roles. Shifts in such perceptions have thus informed legal changes, and vice versa.

This Article argues that a more grounded and more nuanced understanding of women's lived realities requires legal scholars to engage not only history, but also geography. Because spatial aspects of women's lives implicate inequality and moral agency, they have direct relevance to an array of legal issues. I thus deploy the tools of critical geographers - space, place, and scale - to inform law and policy-making about an overlooked population for whom spatiality can be a profoundly influential force: rural women.