Nine Takes on Indeterminacy, with Special Emphasis on the Criminal Law

The claim that legal disputes have no determinate answer is an old one. The worry is one that assails every first‐year law student at some point. Having learned to argue both sides of every case, the feeling seems inevitable. But to assess the “skeptical thesis,” which is what I will hereafter call this claim, in its strongest version, we will do well to look at a particularly vigorous presentation of it, which, in the case of criminal law, is to be found in Mark Kelman\u27s justly famous Interpretive Constructs in the Criminal Law. What caught people\u27s imagination about Kelman\u27s article were, I think, two features: on the one hand, there was the sheer virtuosity with which Kelman presented each side of a series of cases making up the standard criminal law curriculum; but, secondly, and probably more importantly, there were the patterns he was able to discern in the arguments being made—the recurrent themes, tropes, moves, and perspectives being employed by each side. These two aspects of the article imbued Kelman\u27s presentation of the skeptical thesis with particular zest. The skillful presentation of each side of the argument in cases that he did not especially select for the purpose, along with the suggestion that such arguments could be cooked up, almost as by recipe, using the themes, tropes, moves, and perspectives he identified, made the conclusion that legal doctrine really does not settle any dispute, or at least any dispute of consequence, almost irresistible. Something else, most likely the whims of the judges, must be the real determinants of the outcome. Is Kelman arguing that only hard cases are indeterminate? No, he suggests that even easy cases, looked at closely, turn out to be indeterminate. What does he make of the solutions courts purport to offer in these cases? They are make‐believe. The cases could easily have come out differently, but the courts deceive themselves about that by semiconsciously or even unconsciously deleting the possible conceptual moves that would have allowed them to reach an alternative outcome. “One real conclusion,” from his article, he suggests, “one possible bottom line, is that I\u27ve constructed a very elaborate, schematized, and conceptual piece of winking dismissal: ‘Here\u27s what they say, this is how far they have gotten. You know what? There\u27s not much to it.’” In what follows, I am going to consider the skeptical thesis from a variety of perspectives, some of which undercut it, others of which do the reverse