Legal Indeterminacy and Institutional Design
Michael C. Dorf
For over a generation, constitutional theory and academic jurisprudence have attempted to reconcile, on the one hand, the rule of law and the Constitution’s fundamentality with, on the other hand, the fact that legal and constitutional rules frequently do not produce determinate answers to concrete controversies. The approach of radical democrats who would abandon judicial review is unacceptable to all those who believe that some judicially enforceable limits on politics are needed to prevent majoritarian tyranny. At the same time, however, constitutional theories that attempt to justify judicial review have limited utility; at best they strike a compromise between the tyranny of the majority and the counter-majoritarian difficulty. Academic jurisprudence faces a parallel dilemma. Under close scrutiny, both positivism and its principal alternative—Dworkin’s “law as integrity”—turn out to adopt the same strategy for coping with legal indeterminacy: Each claims that the law’s areas of ambiguity are small; yet neither theory nor any of the leading approaches to constitutionalism proposes concrete measures to minimize the impact of legal indeterminacy.
Drawing inspiration from the Legal Process approach of Hart and Sacks, this Article proposes that instead of devising justifications for judicial review or explanations of the task of judges, theorists would do better to design institutions that reduce the domain of legal indeterminacy. Where Hart and Sacks proposed deference to politically accountable actors, however, this Article advocates deep collaboration with the other institutions of government. Departing from the Legal Process assumption that courts must defer to one of a fixed menu of institutions, this Article develops a model of “experimentalist” courts and agencies that are always in transition. This model is based in part on the explosive emergence of “problem-solving courts,” nominally judicial bodies that are more akin to decentralized administrative agencies than to conventional adjudicators. The model is also based on some hints in Supreme Court doctrine that suggest a role for appellate courts in using the opportunity of legal indeterminacy to create the preconditions for local deliberation about the content of legal norms.