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Topic: Indeterminacy debate in legal theory

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	Interpretation and Coherence in Legal Reasoning (Stanford Encyclopedia of Philosophy)
		Moreover, in the case of legal interpretation, Dworkin appears to settle for the argumentative social practice of law as the original to be interpreted (Dworkin 1986, p63).
		Moreover, claims Raz, theories which purport to tell us how to differentiate good interpretations from bad are also impossible because, by its very nature, innovation defies generalisation, such that it is futile to attempt to construct a general theory which differentiates good interpretations from bad as regards the forward-looking aspect of interpretation.
		For Raz, legal institutions claim to express binding and authoritative judgements regarding what ought to be done which are designed to allow people to better conform to reason if they follow the decisions of the authority than if they try to follow those other reasons which apply to them directly (see Raz 1994, ch.10).
	plato.stanford.edu /entries/legal-reas-interpret (7538 words)

	The American Constitution and the Debate Over Originalism
		Goldford observes that “controversies in constitutional theory” are the “legal expression of essentially political conflict,” the “theoretical and principled expression of intensely partisan, practical concerns” (p.1).
		In sum, Goldford’s theory suggests that judicial supremacy is based on a misunderstanding of the nature of constitutional interpretation quite similar to that of orginalism, a misunderstanding that may also be thought to reject or undercut both the binding capacity and democratic character of the text of the Constitution.
		Debates over constitutional interpretation, on this view, involve “nothing more and nothing less than persuasion” that an interpretation of the text should be accepted without even the possibility of a substantive demonstration that it is in fact “right” by virtue of an authoritative interpretation.
	www.bsos.umd.edu /gvpt/lpbr/subpages/reviews/goldford1005.htm (2241 words)

	Indeterminacy debate in legal theory - Wikipedia, the free encyclopedia
		A given body of legal doctrine is said to be "indeterminate" by demonstrating that every legal rule in that body of legal doctrine is opposed by a counterrule that can be used in a process of legal reasoning.
		The indeterminacy thesis, in its strongest form, is the proposition that a judge can "square" any result in a particular case with the existing legal materials through the use of legitimate legal arguments.
		In the 1990s the indeterminacy thesis came under heavy attack by liberal and conservative defenders of the rule of law, and the debate, though its mantle is in the process of being taken up by a new generation of scholars, has left the intellectual spotlight for the time being.
	en.wikipedia.org /wiki/Indeterminacy_debate_in_legal_theory (535 words)

	[No title]
		In legal CBR models, a set of domain-dependent, legally-relevant features is defined, and a prior case is considered more or less on point depending on the degree of match between the features of the prior case and those of the new case.
		Computational models of legal CBR are concerned with the following problems: representation of cases, including their facts, issues, holdings (the judicial conclusions they contain), and results; organization of the case database, including the indexing structure and retrieval algorithms; ranking of retrieved cases by their similarity to a new case; and creation of case-based legal arguments.
		In Toulmin’s theory, an argument’s conclusion is called the claim; the grounds are the facts asserted to support the claim; the warrant is a bridge-like statement (e.g., a legal rule) that provides the logical connection between the grounds and the claim; and the backing is the authority for the warrant (e.g., a statute or regulation).
	www.ccs.neu.edu /home/hafner/hafner-legal.doc (2019 words)

	Selves, Persons, Individuals: Philosophical Perspectives on Women and Legal Obligations.
		By positioning her discussion within the field of legal obligations she seeks to marry practical with theoretical considerations in the mode of analysis that she describes as characteristic of second wave feminist theory-making.
		Legal formalism, which constitutes law as politically neutral, structurally autonomous, and self-defining through its unique internal logic, leaves no space for the epistemological challenges raised by feminist theorizing.
		Positioned carefully in the theory/practice debate Richardson looks to Deleuze and Foucault in conversation as they argue for “a shift away from a dialectical model to a concern to trace the actual ‘relays’ or links between specific areas of thought (not all of which is carried out by ‘intellectuals’) and practice” (p.12).
	www.bsos.umd.edu /gvpt/lpbr/subpages/reviews/richardson1204.htm (1285 words)

	LEAVING THE HART-DWORKIN DEBATE (Site not responding. Last check: 2007-09-22)
		I suggest that Hart's theory of the concept of law is properly understood as serving a special philosophical purpose and is not merely the piece of 'general jurisprudence' that it is often thought to be.
		Rather, the debate is itself both a symptom of a lack of clarity in understanding of the range of viable purposes in theorizing about law and an indication that the enduring significance of the Hart-Dworkin debate almost certainly depends on the results of ongoing meta-theoretical investigations external to it.
		None of this denies that the theory of evolution is only part of the project of understanding life, and none of it denies the great practical value of much scientific investigation, in contrast to the largely intellectual value of the theory of evolution.
	www.utpjournals.com /product/utlj/514/514_culver.html (12783 words)

	Recent Papers and Articles: Professor James Boyle
		The thesis is that legal theory in general, and critical legal theory in particular, has concentrated too much on critiques of objectivity, wrongly assuming that "subjectivity" was an unproblematic term.
		I conclude that the ideas associated with postmodernism are a useful framework for understanding the subject in legal theory and in legal practice.
		At the time, each of these theories was offered as being the only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy and the other theories he had held, or was about to hold, were rejected out of hand.
	www.law.duke.edu /boylesite/Boylebio.htm (4188 words)

	A Critique of Kelsen
		This ambiguity is only partially resolved through the distinction between "legal norm" and "legal statement", for the distinction between legal norm and legal statement is a distinction between the domain of legal science and of law.
		That is, Kelsen is not self contradictory on his position that his theory of law is to be normatively pure - unlike his reversals on constructivism, normative inference, and the real or metaphorical character of the fundamental norm.
		Legal thought in the US is in a state of contention between several different contenders: principally, law and economics, critical legal studies, and communitarianism.
	www.geocities.com /engleerica/Kelsen.HTM (728 words)

	Law in Habermas's Theory of Communicative Action (Mathieu Deflem)
		Legal institutions, such as constitutional and criminal law, refer to regulations that have to be normatively evaluated, and that remain in need of justification in terms of moral-practical discourse.
		Legal research on the basis of the ethics of discourse, therefore, should take into account principles that are more fundamental than, and can serve as a standard to confront, normative claims in courts of law.
		He thereby traces the evolution of Habermas’s legal theory from its earlier formulation on the connection between theory and practice, and its ramifications for political and legal philosophy, to the linguistic turn of the theory of communicative action and the centrality of the validity question.
	www.cas.sc.edu /socy/faculty/deflem/zhablaw.htm (7028 words)

	OhioLINK ETD: Anderson, Scott
		The debate in legal theory over whether judges’ decisions are adequately constrained by law is predicated on a more fundamental issue, namely, whether law is indeterminate.
		The reconstructed view of Hart, termed “legal contextualism,” describes legal indeterminacy, not as a semantic defect of open-textured terms, but rather as a borderline case in which judges have the discretion to apply or not to apply open-textured terms in settling disputes.
		Legal contextualism also suggests a starting point for the indeterminacy debate—confusion over the suppressed systematic ambiguity of the term “law”.
	www.ohiolink.edu /etd/view.cgi?osu1162267088 (358 words)

	Legal Proofreading
		Legal drama - A legal drama is a work of dramatic fiction about law, crime, punishment or the legal profession.
		Legalism (theology) - Legalism, in Christian theology, is a pejorative term referring to an improper fixation on law or codes of conduct, or legal ideas, usually implying an allegation of pride and the neglect of mercy, and ignorance of the grace of God.
		Legalism may also be alleged, in Christian theology, in criticism of theories which are perceived to be excessively dependent upon legal concepts.
	www.mtogdensci.com /legalproofreading.html (1102 words)

	Boston Comment Avant-Garde Debate
		Rather, the idea of indeterminacy in poetic contexts tends to be vaguely empowering, suggesting that something creative is left for the reader to do, or else it is vaguely disempowering, when the so-called indeterminate text becomes an occasion for discovering our own determinations by systems of meaning not of our own making.
		Indeterminacy of some degree is a fundamental quality of all poetry because it is a fundamental quality of language, but with regard to most of the history of poetry, “ambiguity” may be a more precise term for its “fundamental quality” than “indeterminacy.”
		Contemporary poetic indeterminacy is intimately connected to—though not driven by or preceded by--contemporary theoretical rethinking of the reading process, of the processes and venues of reception, and of the dynamics of the reader-writer relationship.
	www.bostoncomment.com /debate.html (13230 words)

	University of Chicago Law Review
		Legal reasoning is not a method or process that leads reasonable, competent, and fair-minded people to particular results in particular cases.
		Generally, the critical force of the indeterminacy thesis is thought to derive from its relationship to the mystification thesis--the view that legal rules mystify structures of domination.
		To begin with, it is reasonable to assume that indeterminacy is itself a criterion used by lawyers to decide which cases are worthwhile to pursue; some cases are pursued because they are 'interesting' (or profitable) in the sense that the result is indeterminate.
	home.sandiego.edu /~lsolum/Westlaw/ontheindeterminacycrisis.htm (10685 words)

	A Night in the Topics
		Legal semiotics has generally been concerned with one of the central tasks of legal analysis and argument-- the justification and application of legal doctrines.
		Legal doctrines constitute laws, but for this reason they simultaneously become a template for the organization of legal experience and a framework for the discussion of legal problems.
		For example, a familiar topic introduced by critical legal studies is the interrelation between public and private; critical race theory and feminism have introduced topics such as unspoken norms of race and gender, analysis of law in terms of its reinforcement of caste, and the intersectionality of identity.
	www.yale.edu /lawweb/jbalkin/articles/topics1.htm (7147 words)

	Southern California Interdisciplinary Law Journal
		The first, a debate in the theory of contract law, concerns the role of default rules as a device for specifying the obligations of the parties to a contract.
		The correct understanding of the limits of legal discourse arguably entails the conclusion that the default rules debate is based on confusion and mistake.
		Legal discourse blends into other discourses; they interpenetrate one another and the lines between them may be blurry and jagged rather than focused and straight.
	home.sandiego.edu /~lsolum/Westlaw/boundariesoflegaldiscourse.htm (8528 words)

	Law
		While some maintained that it was a foundation of Nazi legal theory and practice, others see it as a failed attempt at a conservative counterweight to the most extreme tendencies in National Socialism.
		Although this clearly indicates an increasing recognition of Schmitt's importance in the history of legal and political theory, especially of his significant Weimar contributions, his compromises with the Nazi regime automatically render anything he wrote during those years as inherently suspect and likely to be dismissed out of hand.
		An early critic of institutional theory, Rüthers argued that this type of thinking had actually reemerged rather quickly in Germany after 1945, overtly in legal theory, as well as in the practice of constitutional and civil law, and in disguised forms in other areas of law and sociological theory.
	www.wordtrade.com /society/politics/lawR.htm (2037 words)

	Sentencing In A Post-Booker And Fanfan World
		For the record, I am a Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation, a nonpartisan research and educational organization.
		For without any legal constraint of any form the system will trend, in my judgment, to a practical nullity and a return to indeterminacy.
		If any of those constraints operate as a legal requirement – if the lower court must “find” brandishing, for example, by some quantum of proof – then both the necessity of making such a finding and the assessment of whether the proof is adequate under the standard required can be subject to appellate review.
	www.heritage.org /Research/LegalIssues/tst111704a.cfm (5580 words)

	Critical legal studies - Wikipedia, the free encyclopedia
		Critical legal studies refers to a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law.
		Although the intellectual origins of the Critical Legal Studies (CLS) can be generally traced all the way back to American Legal Realism, as a distinct scholarly movement the CLS fully emerged only by the late 1970s.
		While the influence and prominence of CLS in the American legal academy seem to have waned in recent years, offshoots of CLS, including critical race theory continue to grow in popularity.
	en.wikipedia.org /wiki/Critical_legal_studies (1088 words)

	Queer Theory
		Queer theory echoes that "ideas are weapons." Finally, queer theory reinforces the valuable concept that human beings, as "interactive kinds," should be empowered autonomously to re-create and fully realize themselves, if for no other reason than people cannot be prevented from reacting to classification systems through self-reinvention.
		In the view of some critics, queer theory enhances misunderstanding between the ivory tower and the street, between academics, who should be among the spokespersons for gay interests, and gay activists and their constituencies.
		Among the ways in which queer theory could be amended and extended to make it more useful for communication of political issues and programs is greater concern with the material world and with a politics which entails real causes and risks.
	courses.missouristate.edu /RalphSmith/queer_theory_joh.htm (1256 words)

	SCHOLARSHIP IN A DIVERSE LEGAL ACADEMY
		Although the interpretation of the data is subject to debate, an examination of the AALS database reveals that a disproportionate percentage of women and minorities are concentrated at the lowest ranks of the academy.
		The debate over the existence of the voice of color and the evaluative standards that should be applied to judge it as well as other traditional scholarship has led scholars to reexamine the role of merit in evaluating scholarship.
		Lastly, then, a specific legal topic, the issue of "integrationism," is analyzed to demonstrate the impact that diversity in the legal academy has had on the analysis of these issues and the challenges that remain in resolving them.
	www.aals.org /diversity/johnson.html (8189 words)

	LEGAL HERMENEUTICS
		LEGAL HERMENEUTICS was the kind of book that had to be left to the doctrinalists, traditionalists, or theorists; no self-respecting, young "public law" scholar would have gotten within miles of it.
		Such a field would be energized by the recent revival and renaissance of jurisprudence and legal theory.
		However, those looking for a point of entry into theoretical and jurisprudential debates about interpretation and meaning, or those who are eager just to find out what hermeneutics means and what it has to do with law, should be warned that this book is not the place to begin.
	www.unt.edu /lpbr/subpages/reviews/leyh.htm (2093 words)

	Concurring Opinions: Legal Theory Archives
		Their insistence that a narrow focus on legal rules alone cannot fully explain judicial decisions—expanding the focus to the craft of lawyering, the institutional setting of judging, the socialization of lawyers and judges into the legal tradition—does not mean that the ideological views of judges determines their decisions.
		Because classical deterrence theory depends on the notion that people are rational actors who maximize their selfish returns, the practice seems odd.
		During the middle ages scholastic philosophers debated whether or not universals had actual existence independent of any particular instance of the universal, or whether ultimately all that existed was the particulars themselves.
	www.concurringopinions.com /archives/legal_theory (12276 words)

	[No title] (Site not responding. Last check: 2007-09-22)
		Not only would this improve the chances that legal scholars will understand one another, it will also begin to model ways of expressing disagreement w/o resort to mere force or power, & thereby demonstrate the possibilities of governance by law.ó ¨$On the Problem of Incommensurabilityª¨Here.
		The sheer sense of incommensurability, the incommunicable differences differences in purposes and approaches of different scholarly movements can itself be stated.
		ó¨ Conclusion¨ÖThe problems of teen pregnancy, the homeless, discrimination on the basis of race, wealth, ethnicity, viewpoint, or gender cannot be resolved by reference to any internally sealed system of analysis, & the legitimacy of legal responses will not depend on the coherence & elegance of theory.
	it.stlawu.edu /~kpphilc/legal/powerpoint/law-session4.ppt (179 words)

	Legal Theory Blog (Site not responding. Last check: 2007-09-22)
		True to the efficient breach theory, Jack renegs on his agreement, Jill sues to recover her expectation damages, and Jack pockets the difference between Jill’s damages and the price paid by Jane for the widget-making machine.
		This, of course, is just to presuppose some view of the criteria of legality … in demonstrating the indeterminacy of law by concentrating on indeterminacy in the interpretation of statutes and precedents the realists seem to be supposing that these exhaust the authoritative sources of law, a thesis easiest to justify on positivist grounds.
		The legal realist Underhill Moore for instance asked rhetorically in one of his articles “are there no ultimate ends which are rational?” and immediately replied: “Human experience discloses no ultimates.” If this view is correct, it follows that appearances to the contrary notwithstanding, all references to morality in laws are actually references to social conventions.
	lsolum.typepad.com /legaltheory (9471 words)

	Lawrence B. Solum
		Legal Theory Blog can be accessed at: http://lsolum.blogspot.com
		The Boundaries of Legal Discourse and the Debate Over Default Rules in Contract Law
		Truth and Uncertainty: The Legal Control of the Destruction of Evidence
	home.law.uiuc.edu /~lsolum (188 words)

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