ARTICLE: LEGAL INDETERMINACY MADE IN AMERICA: U.S. LEGAL METHODS AND THE RULE OF LAW Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your lexis.com® ID to access the full text of this article.
-OR-
Order the full text of this article if you do not have a lexis.com® ID.
 
Price: 
US $22.00 (+ tax)
 
 

Copyright (c) 2006 Valparaiso University Law Review
Valparaiso University Law Review

ARTICLE: LEGAL INDETERMINACY MADE IN AMERICA: U.S. LEGAL METHODS AND THE RULE OF LAW

Winter, 2006

41 Val. U.L. Rev. 517

Author

James R. Maxeiner *

Excerpt

I. INTRODUCTION

Not every legal question has a single right answer. In a nutshell, that is the problem of legal indeterminacy. 1 Legal indeterminacy threatens the rule of law. Professor Michael Dorf observes: "If the application of a rule requires deliberation about its meaning, then the rule cannot be a guide to action in the way that a commitment to the rule of law appears to require . . . ." 2

Legal indeterminacy is a persistent problem of legal systems. There is, as the German legal philosopher Gustav Radbruch explained, an antimony among justice, public policy, and legal determinacy. "Legal certainty demands positivity, yet positive law claims to be valid without regard to its justice or expediency [i.e., public policy]." 3 It seems that there is no way to attain absolute legal determinacy without unacceptable sacrifices in justice and policy interests. The indeterminacy problem is, as Dorf puts it, "built into the nature of the legal enterprise." 4

Legal indeterminacy is a perennial issue in American law. 5 In the first half of the twentieth century American legal realists developed it to challenge formalism. 6 In the second half, proponents of Critical Legal Studies used it to attack the rule of law itself. 7 In this century, Professor Frank Upham concluded that notwithstanding American proselytizing for the rule of law, the structure of the United States legal system makes its realization "literally impossible." 8

Contemporary American jurisprudential writing on indeterminacy takes the perspective of ...
 
 
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.
Search Documents
 
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy
 
 
 
 

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

 
LexisNexis Store
Research Now - Go to lexis.com
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities