Legal Uncertainty

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Legal Uncertainty

By “legal uncertainty” Anthony D’Amato (in his article “Legal Uncertainty”, 71 Cal. L. Rev. 1 (1983)) “means the situation that obtains when the rule that is relevant to a given act or transaction is said by informed attorneys to have an expected official outcome at or near the 0.5 level of predictability.

A related but operationally different … definition of legal uncertainty has been used by a number of writers concerned with a specialized problem in jurisprudence. They mean by “uncertainty” the situation that obtains in a legal system when that system contains at least one
case that in principle cannot be decided in an identifiably and uniquely correct way (“ties”). See,
ag., Farago, Intractable Cases: The Role of Uncertainty in the Concept of Law, 55 N.Y.U. L. REV.
195 (1980). C P1 SARTORIUS, INDIVIDUAL CONDUCT AND SOCIAL NoRMs 199-204 (1975) (where
there is more than one optimal solution to a legal problem, judge has absolute discretion to pick the optimal solution he likes best, implying parties can have no expectations in such situations; author then argues there are no such situations); Raz, Legal Princiles and the Limits of Law, 81 YALE LJ. 823, 843-46 (1972) (judicial discretion operates where the law does not provide a uniquely correct solution).”

Anthony D’Amato has “previously criticized this “seamless-web” view on the ground that legal systems give rise to rebuttable presumptions. A claimant wanting to take advantage of judicial redress must establish her case past the 50-50 persuasion level in the judgment of the adjudicator. If she fails to reach that level she loses; if she reaches just 50 percent she also loses; if she passes that point, even infinitesimally, she wins unless the respondent successfully rebuts the argument. See D’Amato, Judicial Legislation, I CARDOZO L. REv. 63, 72-85 (1979).

But apart from this jurisprudential debate, the ordinary person is presumably uninterested in
whether the possibility of a “tie” exists in the legal system. She simply wants to know what the
odds are of her winning; and if an accurate answer is 0.5, then she is informed that her case is a
toss-up. From her point of view, an 0.5 answer is better than an 0.3 answer. From our point of
view, however, the 0.5 answer maximizes legal uncertainty because it means that attorneys cannot predict which side has a better legal case.

Legal uncertainty increases as more and more rules approach the 0.5 level. A more complex relation exists as the prediction moves downward from 0.5 to zero. Below 0.5, legal certainty
increases as a given rule becomes extinguished, but also decreases as other rules are relied upon or created to take the place of the extinguished rules.”

The thesis of D’Amato is that “not that all rules will tend toward the 0.5 level of predictability. The same biases which exist in favor of defendant Jack’s defeating claimant Irma’s reliance on a given rule may operate to push the rule lower than the 0.5 level so that it in fact now
begins to favor Jack instead of Irma who invoked the rule in the first place. But as the rule is
pushed closer and closer to 0, Irma will begin relying on other rules which are weaker than the
rule with which she began (if they were stronger, then she would have relied on them first). The
body of law consisting of all rules, therefore, will tend toward complete 0.5 uncertainty even
though some rules will be pushed toward total extinction at the 0.0 level.” (See P.
SUBER, THE PARADOX OF SELF-AMENDMENT: A STUDY OF Looc, LAW, OMNIPOTENCE, AND
CHANGE (1982))

His contention in that “lawyers’ ability to predict for clients how their actual or potential cases would be resolved by a court is becoming increasingly uncertain.

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