The Columbia Science and Technology Law Review
Harry Surden, The Variable Determinacy Thesis, 12 Colum. Sci. & Tech. L. Rev. 1 (2011), available at http://scholar.law.colorado.edu/articles/188.
This Article proposes a novel technique for characterizing the relative determinacy of legal decision-making. I begin with the observation that the determinacy of legal outcomes varies from context to context within the law. To augment this intuition, I develop a theoretical model of determinate legal decision-making. This model aims to capture the essential features that are typically associated with the concept of legal determinacy. I then argue that we can use such an idealized model as a standard for expressing the relative determinacy or indeterminacy of decision-making in actual, observed legal contexts. From a legal theory standpoint, this approach - separating determinacy and indeterminacy into their constituent conceptual elements - helps us to more rigorously define these theoretical ideas. Ultimately, from a practical standpoint, I assert that this framework assists in understanding why legal outcomes in certain contexts are determinate enough to be amenable to resolution by computers.
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