Ofer Raban (University of Oregon - School of Law) has posted The Fallacy of Legal Certainty: Why Vague Legal Standards May Be Better for Capitalism, Liberalism, and Democracy on SSRN. Here is the abstract:
It is said that clear and unambiguous legal rules are essential for capitalism, liberalism, and democracy, since they allow for the legal certainty that these systems require. This paper argues that these claims are mistaken, and that the certainty we actually care about is often better-achieved by vague and indeterminate legal standards. The mistake derives from a confusion between the certainty and predictability of legal outcomes, and the certainty and predictability that actually matters – that of the world these outcomes generate. But the two can easily come apart: certain and predictable legal outcomes can produce a highly unpredictable world. One principal reason for this is that legal rules exist side-by-side many other social norms that are often more influential than the law in shaping people’s expectations; and, moreover, these non-legal norms are often couched in vague and indeterminate terms. As a result, vague and indeterminate legal standards may be able to produce more predictability than any alternative bright-line rule. This realization should have important consequences for the work of legislatures, lawyers, and judges, who too often assume that vague legal standards should be avoided, where possible, because of the relative uncertainty they entail.
This piece makes an important and neglected point. Recommended.
