When reasonable minds differ

New York University Law Review

Volumn 71, Issue 6, 1996, Pages 1467-1527

  Meyer, Linda Ross ^a,b,c  

^a QUINNIPIAC UNIVERSITY   (United States)

^b UNIVERSITY OF KANSAS   (United States)

^c UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 0030327289     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (339)

1. On the history and general application of these maxims, see Livingston Hall & Selig J. Seligman, Mistake of Law and Mens Rea, 8 U. Chi. L. Rev. 641, 643-46 (1941); Edwin R. Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv. L. Rev. 75, 77-81 (1908); Paul Matthews, Ignorance of the Law Is No Excuse?, 3 Legal Stud. 174, 174-75 (1983); Paul K. Ryu & Helen Silving, Error Juris: A Comparative Study, 24 U. Chi. L. Rev. 421, 423-39 (1957); Bruce R. Grace, Note, Ignorance of the Law as an Excuse, 86 Colum. L. Rev. 1392, 1393-96 (1986).
2. On the history and general application of these maxims, see Livingston Hall & Selig J. Seligman, Mistake of Law and Mens Rea, 8 U. Chi. L. Rev. 641, 643-46 (1941); Edwin R. Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv. L. Rev. 75, 77-81 (1908); Paul Matthews, Ignorance of the Law Is No Excuse?, 3 Legal Stud. 174, 174-75 (1983); Paul K. Ryu & Helen Silving, Error Juris: A Comparative Study, 24 U. Chi. L. Rev. 421, 423-39 (1957); Bruce R. Grace, Note, Ignorance of the Law as an Excuse, 86 Colum. L. Rev. 1392, 1393-96 (1986).
3. On the history and general application of these maxims, see Livingston Hall & Selig J. Seligman, Mistake of Law and Mens Rea, 8 U. Chi. L. Rev. 641, 643-46 (1941); Edwin R. Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv. L. Rev. 75, 77-81 (1908); Paul Matthews, Ignorance of the Law Is No Excuse?, 3 Legal Stud. 174, 174-75 (1983); Paul K. Ryu & Helen Silving, Error Juris: A Comparative Study, 24 U. Chi. L. Rev. 421, 423-39 (1957); Bruce R. Grace, Note, Ignorance of the Law as an Excuse, 86 Colum. L. Rev. 1392, 1393-96 (1986).
4. On the history and general application of these maxims, see Livingston Hall & Selig J. Seligman, Mistake of Law and Mens Rea, 8 U. Chi. L. Rev. 641, 643-46 (1941); Edwin R. Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv. L. Rev. 75, 77-81 (1908); Paul Matthews, Ignorance of the Law Is No Excuse?, 3 Legal Stud. 174, 174-75 (1983); Paul K. Ryu & Helen Silving, Error Juris: A Comparative Study, 24 U. Chi. L. Rev. 421, 423-39 (1957); Bruce R. Grace, Note, Ignorance of the Law as an Excuse, 86 Colum. L. Rev. 1392, 1393-96 (1986).
5. On the history and general application of these maxims, see Livingston Hall & Selig J. Seligman, Mistake of Law and Mens Rea, 8 U. Chi. L. Rev. 641, 643-46 (1941); Edwin R. Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv. L. Rev. 75, 77-81 (1908); Paul Matthews, Ignorance of the Law Is No Excuse?, 3 Legal Stud. 174, 174-75 (1983); Paul K. Ryu & Helen Silving, Error Juris: A Comparative Study, 24 U. Chi. L. Rev. 421, 423-39 (1957); Bruce R. Grace, Note, Ignorance of the Law as an Excuse, 86 Colum. L. Rev. 1392, 1393-96 (1986).
6. See Cesare Beccaria, On Crimes and Punishments 14-17 (Henry Paolucci trans., 1963).
7. See Lewis Carroll, Alice's Adventures in Wonderland 128 (Selwyn H. Goodacre ed., 1982) ("'Let the jury consider their verdict,' the King said, for about the twentieth time that day. 'No, no!' said the Queen. 'Sentence first - verdict afterwards.'"). The unpredictability of legal decisions is referred to as "causal indeterminacy." Jules L. Coleman & Brian Leiter, Determinacy, Objectivity, and Authority, 142 U. Pa. L. Rev. 549, 581 (1993).
8. See Lewis Carroll, Alice's Adventures in Wonderland 128 (Selwyn H. Goodacre ed., 1982) ("'Let the jury consider their verdict,' the King said, for about the twentieth time that day. 'No, no!' said the Queen. 'Sentence first - verdict afterwards.'"). The unpredictability of legal decisions is referred to as "causal indeterminacy." Jules L. Coleman & Brian Leiter, Determinacy, Objectivity, and Authority, 142 U. Pa. L. Rev. 549, 581 (1993).
9. It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (footnotes omitted).
10. Ken Kress has distinguished between epistemological indeterminacy and metaphysical indeterminacy. The first assumes only that we cannot know the right answer; the latter assumes there is no right answer. According to Kress, only metaphysical indeterminacy undermines the justification of law; epistemological indeterminacy may undermine only its predictability. See Ken Kress, A Preface to Epistemological Indeterminacy, 85 Nw. U. L. Rev. 134, 138 (1990); cf. George H. Smith, Of the Certainty of the Law and the Uncertainty of Judicial Decisions, 23 Am. L. Rev. 699, 709-11 (1889) (arguing from natural law perspective that indeterminacy results from defects in judicial system rather than nature of law itself). This Article, which treats only how judicial decisions deal with indeterminacy, obviously does not consider metaphysical or ontological questions. Indeed, such questions are beyond our ken. See Robert Justin Lipkin, Indeterminacy, Justification and Truth in Constitutional Theory, 60 Fordham L. Rev. 595, 598 (1992) (arguing that epistemic indeterminacy is more relevant to law than metaphysical indeterminacy because it has stronger link to practical reasoning).
11. Ken Kress has distinguished between epistemological indeterminacy and metaphysical indeterminacy. The first assumes only that we cannot know the right answer; the latter assumes there is no right answer. According to Kress, only metaphysical indeterminacy undermines the justification of law; epistemological indeterminacy may undermine only its predictability. See Ken Kress, A Preface to Epistemological Indeterminacy, 85 Nw. U. L. Rev. 134, 138 (1990); cf. George H. Smith, Of the Certainty of the Law and the Uncertainty of Judicial Decisions, 23 Am. L. Rev. 699, 709-11 (1889) (arguing from natural law perspective that indeterminacy results from defects in judicial system rather than nature of law itself). This Article, which treats only how judicial decisions deal with indeterminacy, obviously does not consider metaphysical or ontological questions. Indeed, such questions are beyond our ken. See Robert Justin Lipkin, Indeterminacy, Justification and Truth in Constitutional Theory, 60 Fordham L. Rev. 595, 598 (1992) (arguing that epistemic indeterminacy is more relevant to law than metaphysical indeterminacy because it has stronger link to practical reasoning).
12. Ken Kress has distinguished between epistemological indeterminacy and metaphysical indeterminacy. The first assumes only that we cannot know the right answer; the latter assumes there is no right answer. According to Kress, only metaphysical indeterminacy undermines the justification of law; epistemological indeterminacy may undermine only its predictability. See Ken Kress, A Preface to Epistemological Indeterminacy, 85 Nw. U. L. Rev. 134, 138 (1990); cf. George H. Smith, Of the Certainty of the Law and the Uncertainty of Judicial Decisions, 23 Am. L. Rev. 699, 709-11 (1889) (arguing from natural law perspective that indeterminacy results from defects in judicial system rather than nature of law itself). This Article, which treats only how judicial decisions deal with indeterminacy, obviously does not consider metaphysical or ontological questions. Indeed, such questions are beyond our ken. See Robert Justin Lipkin, Indeterminacy, Justification and Truth in Constitutional Theory, 60 Fordham L. Rev. 595, 598 (1992) (arguing that epistemic indeterminacy is more relevant to law than metaphysical indeterminacy because it has stronger link to practical reasoning).
13. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
14. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
15. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
16. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
17. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
18. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
19. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
20. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
21. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
22. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250, 250-56 (1989) [hereinafter D'Amato, The "Easy Case"] (demonstrating uncertainty even in easy cases); Anthony D'Amato, Aspects of Deconstruction: The Failure of the Word "Bird," 84 Nw. U. L. Rev. 536, 540-41 (1990) [hereinafter D'Amato, Failure of the Word "Bird"] (same); Anthony D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 514 (1989) [hereinafter D'Amato, Any Legal Theory] (arguing "legal theory is inherently incapable of identifying which party should win in any given case"); Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground," 91 Mich. L. Rev. 2075, 2090-93 (1993) (defending "critical method" of acknowledging indeterminacy in law); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, 43 U. Miami L. Rev. 541, 543 (1989) (arguing law is "irredeemably indeterminate"); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984) ("legal doctrine may be sufficiently indeterminate that it could justify any outcome of a legal dispute," though social and political factors still constrain outcomes); Charles M. Yablon, The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation, 6 Cardozo L. Rev. 917, 920 (1985) (defending Critical Legal Studies view that legal doctrine can never compel results in concrete cases); see also James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1004 (1985) ("[N]ot only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching."); cf. Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 444 (1982) (approving of "multiplicity of readings that the law permits"). For a complete and insightful history of the indeterminacy debate from the Legal Realist period to the present, see John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 84-100 (1995).
23. See, e.g., H.L.A. Hart, The Concept of Law 121-37 (1961) (discussing difference between familiar, unchallenged cases and ones that are not so axiomatic); Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life 34-37 (1991) (arguing that even "[t]he most precise of rules is potentially imprecise" in an unusual case); Coleman & Leiter, supra note 3, at 567 (explaining viewpoint that the richer the legal regime, the fewer legal gaps there will be); Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. Rev. 1, 2 (1990) (showing how often law yields determinate answers); Brian Langille, Revolution Without Foundation: The Grammar of Skepticism and Law, 33 McGill L.J. 451, 456-65 (1988) (critically outlining common indeterminacy arguments); Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 405-07 (1985) [hereinafter Schauer, Easy Cases] (arguing that specific wording of Constitution determines which case will be easy and which will be hard); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 463 (1987) (arguing "critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite").
24. See, e.g., H.L.A. Hart, The Concept of Law 121-37 (1961) (discussing difference between familiar, unchallenged cases and ones that are not so axiomatic); Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life 34-37 (1991) (arguing that even "[t]he most precise of rules is potentially imprecise" in an unusual case); Coleman & Leiter, supra note 3, at 567 (explaining viewpoint that the richer the legal regime, the fewer legal gaps there will be); Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. Rev. 1, 2 (1990) (showing how often law yields determinate answers); Brian Langille, Revolution Without Foundation: The Grammar of Skepticism and Law, 33 McGill L.J. 451, 456-65 (1988) (critically outlining common indeterminacy arguments); Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 405-07 (1985) [hereinafter Schauer, Easy Cases] (arguing that specific wording of Constitution determines which case will be easy and which will be hard); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 463 (1987) (arguing "critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite").
25. See, e.g., H.L.A. Hart, The Concept of Law 121-37 (1961) (discussing difference between familiar, unchallenged cases and ones that are not so axiomatic); Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life 34-37 (1991) (arguing that even "[t]he most precise of rules is potentially imprecise" in an unusual case); Coleman & Leiter, supra note 3, at 567 (explaining viewpoint that the richer the legal regime, the fewer legal gaps there will be); Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. Rev. 1, 2 (1990) (showing how often law yields determinate answers); Brian Langille, Revolution Without Foundation: The Grammar of Skepticism and Law, 33 McGill L.J. 451, 456-65 (1988) (critically outlining common indeterminacy arguments); Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 405-07 (1985) [hereinafter Schauer, Easy Cases] (arguing that specific wording of Constitution determines which case will be easy and which will be hard); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 463 (1987) (arguing "critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite").
26. See, e.g., H.L.A. Hart, The Concept of Law 121-37 (1961) (discussing difference between familiar, unchallenged cases and ones that are not so axiomatic); Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life 34-37 (1991) (arguing that even "[t]he most precise of rules is potentially imprecise" in an unusual case); Coleman & Leiter, supra note 3, at 567 (explaining viewpoint that the richer the legal regime, the fewer legal gaps there will be); Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. Rev. 1, 2 (1990) (showing how often law yields determinate answers); Brian Langille, Revolution Without Foundation: The Grammar of Skepticism and Law, 33 McGill L.J. 451, 456-65 (1988) (critically outlining common indeterminacy arguments); Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 405-07 (1985) [hereinafter Schauer, Easy Cases] (arguing that specific wording of Constitution determines which case will be easy and which will be hard); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 463 (1987) (arguing "critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite").
27. See, e.g., H.L.A. Hart, The Concept of Law 121-37 (1961) (discussing difference between familiar, unchallenged cases and ones that are not so axiomatic); Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life 34-37 (1991) (arguing that even "[t]he most precise of rules is potentially imprecise" in an unusual case); Coleman & Leiter, supra note 3, at 567 (explaining viewpoint that the richer the legal regime, the fewer legal gaps there will be); Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. Rev. 1, 2 (1990) (showing how often law yields determinate answers); Brian Langille, Revolution Without Foundation: The Grammar of Skepticism and Law, 33 McGill L.J. 451, 456-65 (1988) (critically outlining common indeterminacy arguments); Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 405-07 (1985) [hereinafter Schauer, Easy Cases] (arguing that specific wording of Constitution determines which case will be easy and which will be hard); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 463 (1987) (arguing "critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite").
28. See, e.g., H.L.A. Hart, The Concept of Law 121-37 (1961) (discussing difference between familiar, unchallenged cases and ones that are not so axiomatic); Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life 34-37 (1991) (arguing that even "[t]he most precise of rules is potentially imprecise" in an unusual case); Coleman & Leiter, supra note 3, at 567 (explaining viewpoint that the richer the legal regime, the fewer legal gaps there will be); Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. Rev. 1, 2 (1990) (showing how often law yields determinate answers); Brian Langille, Revolution Without Foundation: The Grammar of Skepticism and Law, 33 McGill L.J. 451, 456-65 (1988) (critically outlining common indeterminacy arguments); Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 405-07 (1985) [hereinafter Schauer, Easy Cases] (arguing that specific wording of Constitution determines which case will be easy and which will be hard); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 463 (1987) (arguing "critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite").
29. See, e.g., H.L.A. Hart, The Concept of Law 121-37 (1961) (discussing difference between familiar, unchallenged cases and ones that are not so axiomatic); Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life 34-37 (1991) (arguing that even "[t]he most precise of rules is potentially imprecise" in an unusual case); Coleman & Leiter, supra note 3, at 567 (explaining viewpoint that the richer the legal regime, the fewer legal gaps there will be); Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. Rev. 1, 2 (1990) (showing how often law yields determinate answers); Brian Langille, Revolution Without Foundation: The Grammar of Skepticism and Law, 33 McGill L.J. 451, 456-65 (1988) (critically outlining common indeterminacy arguments); Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 405-07 (1985) [hereinafter Schauer, Easy Cases] (arguing that specific wording of Constitution determines which case will be easy and which will be hard); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 463 (1987) (arguing "critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite").
30. Theorists on both sides of the debate worry less about the unpredictability of legal decisionmaking, as such. Though that may be of more concern to citizens and practitioners, and certainly has consequences for the perceived legitimacy of legal institutions, the theorists are willing to live with unpredictability as long as the ultimate answers can be justified by the law. As Coleman and Leiter point out, judicial decisions may be predictable using means other than legal doctrine. Hence, the debate goes primarily to the question of whether law or legal reasons determine or constrain judicial decisionmaking. See Coleman & Leiter, supra note 3, at 584-87 (arguing that lawyers and citizens may have workable "folk" theories enabling prediction of judicial outcomes, separate from doctrinal analysis). However, notice is an essential part of the rule of law values that ground legal legitimacy. So, predictability may be a component of legal justification. See Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 Duke L.J. 1, 4 (1992) (arguing that predictability about outcomes is major problem, generated not only by doctrinal uncertainties but also by overlapping jurisdiction of legal and regulatory institutions and proliferation of rules).
31. Theorists on both sides of the debate worry less about the unpredictability of legal decisionmaking, as such. Though that may be of more concern to citizens and practitioners, and certainly has consequences for the perceived legitimacy of legal institutions, the theorists are willing to live with unpredictability as long as the ultimate answers can be justified by the law. As Coleman and Leiter point out, judicial decisions may be predictable using means other than legal doctrine. Hence, the debate goes primarily to the question of whether law or legal reasons determine or constrain judicial decisionmaking. See Coleman & Leiter, supra note 3, at 584-87 (arguing that lawyers and citizens may have workable "folk" theories enabling prediction of judicial outcomes, separate from doctrinal analysis). However, notice is an essential part of the rule of law values that ground legal legitimacy. So, predictability may be a component of legal justification. See Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 Duke L.J. 1, 4 (1992) (arguing that predictability about outcomes is major problem, generated not only by doctrinal uncertainties but also by overlapping jurisdiction of legal and regulatory institutions and proliferation of rules).
32. See Coleman & Leiter, supra note 3, at 587-92 (politics, sociology, and psychology may allow prediction even if doctrine uncertain); Hasnas, supra note 6, at 86 (arguing that Critical Legal Studies scholars have failed to take lesson from indeterminacy debate that their focus now should be to adopt pragmatic empiricism of public choice theory in order to understand legal institutions and decisionmakers).
33. See Coleman & Leiter, supra note 3, at 587-92 (politics, sociology, and psychology may allow prediction even if doctrine uncertain); Hasnas, supra note 6, at 86 (arguing that Critical Legal Studies scholars have failed to take lesson from indeterminacy debate that their focus now should be to adopt pragmatic empiricism of public choice theory in order to understand legal institutions and decisionmakers).
34. Coleman and Leiter refer to this as the indeterminacy of reasons - legal reasons do not determine outcomes in particular cases. See Coleman & Leiter, supra note 3, at 559-64.
35. See id. at 592 ("As long as we opt for a system of formal resolution, someone has to win and someone has to lose. . . . In the end, a decision for either the plaintiff or the defendant will be arbitrary, but it does not necessarily follow that the decision will be utterly unreasoned or unreasonable.").
36. See Kress, supra note 5, at 147 ("[S]hould we celebrate the diversity resulting from, and the aesthetic and human elements remaining, when outcomes are not mechanically determinable from authoritative reasons, but require the exercise of discretion - in other words, good judgment?"); Christopher L. Kutz, Just Disagreement: Indeterminacy and Rationality in the Rule of Law, 103 Yale L.J. 997, 998 (1994) ("The experience of moral conflict is a sign of maturity, an awareness of the complexity and depth of the values which claim our attention."); Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 509, 540 (1994) (noting that constitutional concepts may need to be contestable in order to spark debate and focus public attention on important issues: "We do not agree on many things in our society, but perhaps we can agree on this: that we are a better society for continuing to argue about certain issues than we would be if such arguments were artificially or stipulatively concluded.").
37. See Kress, supra note 5, at 147 ("[S]hould we celebrate the diversity resulting from, and the aesthetic and human elements remaining, when outcomes are not mechanically determinable from authoritative reasons, but require the exercise of discretion - in other words, good judgment?"); Christopher L. Kutz, Just Disagreement: Indeterminacy and Rationality in the Rule of Law, 103 Yale L.J. 997, 998 (1994) ("The experience of moral conflict is a sign of maturity, an awareness of the complexity and depth of the values which claim our attention."); Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 509, 540 (1994) (noting that constitutional concepts may need to be contestable in order to spark debate and focus public attention on important issues: "We do not agree on many things in our society, but perhaps we can agree on this: that we are a better society for continuing to argue about certain issues than we would be if such arguments were artificially or stipulatively concluded.").
38. See Kress, supra note 5, at 147 ("[S]hould we celebrate the diversity resulting from, and the aesthetic and human elements remaining, when outcomes are not mechanically determinable from authoritative reasons, but require the exercise of discretion - in other words, good judgment?"); Christopher L. Kutz, Just Disagreement: Indeterminacy and Rationality in the Rule of Law, 103 Yale L.J. 997, 998 (1994) ("The experience of moral conflict is a sign of maturity, an awareness of the complexity and depth of the values which claim our attention."); Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 509, 540 (1994) (noting that constitutional concepts may need to be contestable in order to spark debate and focus public attention on important issues: "We do not agree on many things in our society, but perhaps we can agree on this: that we are a better society for continuing to argue about certain issues than we would be if such arguments were artificially or stipulatively concluded.").
39. On the radical side, see, e.g., Hutchinson, supra note 6, at 543 ("[t]he indeterminacy critique is fatal to the legitimacy of the current adjudicative enterprise"); Singer, supra note 6, at 12 ("Determinacy is necessary to the ideology of the rule of law, for both theorists and judges. It is the only way judges can appear to apply the law rather than make it."); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 824 (1983) ("[T]he rule of law requires that preexisting rules be followed. . . . If we truly allow all reasonable arguments to be made and possibly accepted, we abandon the notion of rule-following entirely, and with it we abandon the ideal of the rule of law."). On the moderate side, see, e.g., Coleman & Leiter, supra note 3, at 561-63 (noting indeterminacy creates problem of justification only in hard cases); Solum, supra note 7, at 480 (same). But see Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 955, 959, 1012-16 (1995) (adopting much more pragmatic and contextual approach to virtues and vices of rule-based decisionmaking).
40. On the radical side, see, e.g., Hutchinson, supra note 6, at 543 ("[t]he indeterminacy critique is fatal to the legitimacy of the current adjudicative enterprise"); Singer, supra note 6, at 12 ("Determinacy is necessary to the ideology of the rule of law, for both theorists and judges. It is the only way judges can appear to apply the law rather than make it."); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 824 (1983) ("[T]he rule of law requires that preexisting rules be followed. . . . If we truly allow all reasonable arguments to be made and possibly accepted, we abandon the notion of rule-following entirely, and with it we abandon the ideal of the rule of law."). On the moderate side, see, e.g., Coleman & Leiter, supra note 3, at 561-63 (noting indeterminacy creates problem of justification only in hard cases); Solum, supra note 7, at 480 (same). But see Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 955, 959, 1012-16 (1995) (adopting much more pragmatic and contextual approach to virtues and vices of rule-based decisionmaking).
41. On the radical side, see, e.g., Hutchinson, supra note 6, at 543 ("[t]he indeterminacy critique is fatal to the legitimacy of the current adjudicative enterprise"); Singer, supra note 6, at 12 ("Determinacy is necessary to the ideology of the rule of law, for both theorists and judges. It is the only way judges can appear to apply the law rather than make it."); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 824 (1983) ("[T]he rule of law requires that preexisting rules be followed. . . . If we truly allow all reasonable arguments to be made and possibly accepted, we abandon the notion of rule-following entirely, and with it we abandon the ideal of the rule of law."). On the moderate side, see, e.g., Coleman & Leiter, supra note 3, at 561-63 (noting indeterminacy creates problem of justification only in hard cases); Solum, supra note 7, at 480 (same). But see Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 955, 959, 1012-16 (1995) (adopting much more pragmatic and contextual approach to virtues and vices of rule-based decisionmaking).
42. On the radical side, see, e.g., Hutchinson, supra note 6, at 543 ("[t]he indeterminacy critique is fatal to the legitimacy of the current adjudicative enterprise"); Singer, supra note 6, at 12 ("Determinacy is necessary to the ideology of the rule of law, for both theorists and judges. It is the only way judges can appear to apply the law rather than make it."); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 824 (1983) ("[T]he rule of law requires that preexisting rules be followed. . . . If we truly allow all reasonable arguments to be made and possibly accepted, we abandon the notion of rule-following entirely, and with it we abandon the ideal of the rule of law."). On the moderate side, see, e.g., Coleman & Leiter, supra note 3, at 561-63 (noting indeterminacy creates problem of justification only in hard cases); Solum, supra note 7, at 480 (same). But see Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 955, 959, 1012-16 (1995) (adopting much more pragmatic and contextual approach to virtues and vices of rule-based decisionmaking).
43. On the radical side, see, e.g., Hutchinson, supra note 6, at 543 ("[t]he indeterminacy critique is fatal to the legitimacy of the current adjudicative enterprise"); Singer, supra note 6, at 12 ("Determinacy is necessary to the ideology of the rule of law, for both theorists and judges. It is the only way judges can appear to apply the law rather than make it."); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 824 (1983) ("[T]he rule of law requires that preexisting rules be followed. . . . If we truly allow all reasonable arguments to be made and possibly accepted, we abandon the notion of rule-following entirely, and with it we abandon the ideal of the rule of law."). On the moderate side, see, e.g., Coleman & Leiter, supra note 3, at 561-63 (noting indeterminacy creates problem of justification only in hard cases); Solum, supra note 7, at 480 (same). But see Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 955, 959, 1012-16 (1995) (adopting much more pragmatic and contextual approach to virtues and vices of rule-based decisionmaking).
44. On the radical side, see, e.g., Hutchinson, supra note 6, at 543 ("[t]he indeterminacy critique is fatal to the legitimacy of the current adjudicative enterprise"); Singer, supra note 6, at 12 ("Determinacy is necessary to the ideology of the rule of law, for both theorists and judges. It is the only way judges can appear to apply the law rather than make it."); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 824 (1983) ("[T]he rule of law requires that preexisting rules be followed. . . . If we truly allow all reasonable arguments to be made and possibly accepted, we abandon the notion of rule-following entirely, and with it we abandon the ideal of the rule of law."). On the moderate side, see, e.g., Coleman & Leiter, supra note 3, at 561-63 (noting indeterminacy creates problem of justification only in hard cases); Solum, supra note 7, at 480 (same). But see Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 955, 959, 1012-16 (1995) (adopting much more pragmatic and contextual approach to virtues and vices of rule-based decisionmaking).
45. 489 U.S. 288 (1989) (plurality opinion) (holding federal courts may not apply new rules of constitutional law to state habeas petitioners unless new rule prohibits conduct from being criminalized or is "watershed" rule of criminal procedure).
46. Butler v. McKellar, 494 U.S. 407, 412, 415 (1990) (stating Teague bar applies to any rule not dictated by precedent).
47. 467 U.S. 837 (1984).
48. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
49. Perhaps this is the time to anticipate an objection to this line of inquiry. A skeptical commentator would explain the different use of indeterminacy in the Rule 11 and qualified immunity contexts by saying simply that judges want to protect lawyers, with whom they feel an affinity, from liability, and that they are less concerned about the plight of other governmental actors. Hence, judges are more apt to find "clearly established" law in the context of qualified immunity than they are in the context of Rule 11. However, this skeptical answer may be incompatible with other doctrinal areas in which governmental actors are given more leeway than (criminal defense) lawyers. See Kit Kinports, Habeas Corpus, Qualified Immunity, and Crystal Balls: Predicting the Course of Constitutional Law, 33 Ariz. L. Rev. 115, 115-17 (1991) (comparing standards applied to public officials, defense attorneys, and state judges). (Or, I suppose, one could imagine a Dantesque ranking of judicial favorites: civil lawyers, governmental actors, criminal defense lawyers.) do not take the cynical approach in this Article, for a couple of reasons. First, my own experience leads me to believe that judges do try to decide cases on principle. Judicial laziness is more to be feared than judicial activism. Second, even granted that judges may harbor unconscious prejudices, see Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 321-22 (1987) (arguing that racism may be unconscious), a kind of "principle of charity" (perhaps even professional obligation) requires an interpreter of legal texts (or any text, for that matter) to assume they make some kind of sense on their own terms, before resorting to causal explanations. Cf. Donald Davidson, Actions, Reasons, and Causes, in Essays on Actions and Events 3, 3-4 (1980) (articulating "principle of charity"); Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures 3, 20 (1973) (arguing anthropologists should interpret meaning of culture before resorting to causal explanations); Hart, supra note 7, at 86-88 (theory of law should not ignore "internal" standpoint, from which law is understood as normative, in favor of exclusive concern with "external" standpoint, from which law is merely coercion). I suppose I am hopelessly old-fashioned. See J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105, 129 (1993) (asserting "rational reconstruction" of doctrine is not the only valid approach to law, and "does not always accurately predict the behavior of legal officials, and it cannot tell us the practical effects of legal norms").
50. Perhaps this is the time to anticipate an objection to this line of inquiry. A skeptical commentator would explain the different use of indeterminacy in the Rule 11 and qualified immunity contexts by saying simply that judges want to protect lawyers, with whom they feel an affinity, from liability, and that they are less concerned about the plight of other governmental actors. Hence, judges are more apt to find "clearly established" law in the context of qualified immunity than they are in the context of Rule 11. However, this skeptical answer may be incompatible with other doctrinal areas in which governmental actors are given more leeway than (criminal defense) lawyers. See Kit Kinports, Habeas Corpus, Qualified Immunity, and Crystal Balls: Predicting the Course of Constitutional Law, 33 Ariz. L. Rev. 115, 115-17 (1991) (comparing standards applied to public officials, defense attorneys, and state judges). (Or, I suppose, one could imagine a Dantesque ranking of judicial favorites: civil lawyers, governmental actors, criminal defense lawyers.) do not take the cynical approach in this Article, for a couple of reasons. First, my own experience leads me to believe that judges do try to decide cases on principle. Judicial laziness is more to be feared than judicial activism. Second, even granted that judges may harbor unconscious prejudices, see Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 321-22 (1987) (arguing that racism may be unconscious), a kind of "principle of charity" (perhaps even professional obligation) requires an interpreter of legal texts (or any text, for that matter) to assume they make some kind of sense on their own terms, before resorting to causal explanations. Cf. Donald Davidson, Actions, Reasons, and Causes, in Essays on Actions and Events 3, 3-4 (1980) (articulating "principle of charity"); Clifford Geertz, Thick Description: Toward an
51. Perhaps this is the time to anticipate an objection to this line of inquiry. A skeptical commentator would explain the different use of indeterminacy in the Rule 11 and qualified immunity contexts by saying simply that judges want to protect lawyers, with whom they feel an affinity, from liability, and that they are less concerned about the plight of other governmental actors. Hence, judges are more apt to find "clearly established" law in the context of qualified immunity than they are in the context of Rule 11. However, this skeptical answer may be incompatible with other doctrinal areas in which governmental actors are given more leeway than (criminal defense) lawyers. See Kit Kinports, Habeas Corpus, Qualified Immunity, and Crystal Balls: Predicting the Course of Constitutional Law, 33 Ariz. L. Rev. 115, 115-17 (1991) (comparing standards applied to public officials, defense attorneys, and state judges). (Or, I suppose, one could imagine a Dantesque ranking of judicial favorites: civil lawyers, governmental actors, criminal defense lawyers.) do not take the cynical approach in this Article, for a couple of reasons. First, my own experience leads me to believe that judges do try to decide cases on principle. Judicial laziness is more to be feared than judicial activism. Second, even granted that judges may harbor unconscious prejudices, see Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 321-22 (1987) (arguing that racism may be unconscious), a kind of "principle of charity" (perhaps even professional obligation) requires an interpreter of legal texts (or any text, for that matter) to assume they make some kind of sense on their own terms, before resorting to causal explanations. Cf. Donald Davidson, Actions, Reasons, and Causes, in Essays on Actions and Events 3, 3-4 (1980) (articulating "principle of charity"); Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures 3, 20 (1973) (arguing anthropologists should interpret meaning of culture before resorting to causal explanations); Hart, supra note 7, at 86-88 (theory of law should not ignore "internal" standpoint, from which law is understood as normative, in favor of exclusive concern with "external" standpoint, from which law is merely coercion). I suppose I am hopelessly old-fashioned. See J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105, 129 (1993) (asserting "rational reconstruction" of doctrine is not the only valid approach to law, and "does not always accurately predict the behavior of legal officials, and it cannot tell us the practical effects of legal norms").
52. Perhaps this is the time to anticipate an objection to this line of inquiry. A skeptical commentator would explain the different use of indeterminacy in the Rule 11 and qualified immunity contexts by saying simply that judges want to protect lawyers, with whom they feel an affinity, from liability, and that they are less concerned about the plight of other governmental actors. Hence, judges are more apt to find "clearly established" law in the context of qualified immunity than they are in the context of Rule 11. However, this skeptical answer may be incompatible with other doctrinal areas in which governmental actors are given more leeway than (criminal defense) lawyers. See Kit Kinports, Habeas Corpus, Qualified Immunity, and Crystal Balls: Predicting the Course of Constitutional Law, 33 Ariz. L. Rev. 115, 115-17 (1991) (comparing standards applied to public officials, defense attorneys, and state judges). (Or, I suppose, one could imagine a Dantesque ranking of judicial favorites: civil lawyers, governmental actors, criminal defense lawyers.) do not take the cynical approach in this Article, for a couple of reasons. First, my own experience leads me to believe that judges do try to decide cases on principle. Judicial laziness is more to be feared than judicial activism. Second, even granted that judges may harbor unconscious prejudices, see Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 321-22 (1987) (arguing that racism may be unconscious), a kind of "principle of charity" (perhaps even professional obligation) requires an interpreter of legal texts (or any text, for that matter) to assume they make some kind of sense on their own terms, before resorting to causal explanations. Cf. Donald Davidson, Actions, Reasons, and Causes, in Essays on Actions and Events 3, 3-4 (1980) (articulating "principle of charity"); Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures 3, 20 (1973) (arguing anthropologists should interpret meaning of culture before resorting to causal explanations); Hart, supra note 7, at 86-88 (theory of law should not ignore "internal" standpoint, from which law is understood as normative, in favor of exclusive concern with "external" standpoint, from which law is merely coercion). I suppose I am hopelessly old-fashioned. See J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105, 129 (1993) (asserting "rational reconstruction" of doctrine is not the only valid approach to law, and "does not always accurately predict the behavior of legal officials, and it cannot tell us the practical effects of legal norms").
53. Perhaps this is the time to anticipate an objection to this line of inquiry. A skeptical commentator would explain the different use of indeterminacy in the Rule 11 and qualified immunity contexts by saying simply that judges want to protect lawyers, with whom they feel an affinity, from liability, and that they are less concerned about the plight of other governmental actors. Hence, judges are more apt to find "clearly established" law in the context of qualified immunity than they are in the context of Rule 11. However, this skeptical answer may be incompatible with other doctrinal areas in which governmental actors are given more leeway than (criminal defense) lawyers. See Kit Kinports, Habeas Corpus, Qualified Immunity, and Crystal Balls: Predicting the Course of Constitutional Law, 33 Ariz. L. Rev. 115, 115-17 (1991) (comparing standards applied to public officials, defense attorneys, and state judges). (Or, I suppose, one could imagine a Dantesque ranking of judicial favorites: civil lawyers, governmental actors, criminal defense lawyers.) do not take the cynical approach in this Article, for a couple of reasons. First, my own experience leads me to believe that judges do try to decide cases on principle. Judicial laziness is more to be feared than judicial activism. Second, even granted that judges may harbor unconscious prejudices, see Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 321-22 (1987) (arguing that racism may be unconscious), a kind of "principle of charity" (perhaps even professional obligation) requires an interpreter of legal texts (or any text, for that matter) to assume they make some kind of sense on their own terms, before resorting to causal explanations. Cf. Donald Davidson, Actions, Reasons, and Causes, in Essays on Actions and Events 3, 3-4 (1980) (articulating "principle of charity"); Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures 3, 20 (1973) (arguing anthropologists should interpret meaning of culture before resorting to causal explanations); Hart, supra note 7, at 86-88 (theory of law should not ignore "internal" standpoint, from which law is understood as normative, in favor of exclusive concern with "external" standpoint, from which law is merely coercion). I suppose I am hopelessly old-fashioned. See J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105, 129 (1993) (asserting "rational reconstruction" of doctrine is not the only valid approach to law, and "does not always accurately predict the behavior of legal officials, and it cannot tell us the practical effects of legal norms").
54. Perhaps this is the time to anticipate an objection to this line of inquiry. A skeptical commentator would explain the different use of indeterminacy in the Rule 11 and qualified immunity contexts by saying simply that judges want to protect lawyers, with whom they feel an affinity, from liability, and that they are less concerned about the plight of other governmental actors. Hence, judges are more apt to find "clearly established" law in the context of qualified immunity than they are in the context of Rule 11. However, this skeptical answer may be incompatible with other doctrinal areas in which governmental actors are given more leeway than (criminal defense) lawyers. See Kit Kinports, Habeas Corpus, Qualified Immunity, and Crystal Balls: Predicting the Course of Constitutional Law, 33 Ariz. L. Rev. 115, 115-17 (1991) (comparing standards applied to public officials, defense attorneys, and state judges). (Or, I suppose, one could imagine a Dantesque ranking of judicial favorites: civil lawyers, governmental actors, criminal defense lawyers.) do not take the cynical approach in this Article, for a couple of reasons. First, my own experience leads me to believe that judges do try to decide cases on principle. Judicial laziness is more to be feared than judicial activism. Second, even granted that judges may harbor unconscious prejudices, see Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 321-22 (1987) (arguing that racism may be unconscious), a kind of "principle of charity" (perhaps even professional obligation) requires an interpreter of legal texts (or any text, for that matter) to assume they make some kind of sense on their own terms, before resorting to causal explanations. Cf. Donald Davidson, Actions, Reasons, and Causes, in Essays on Actions and Events 3, 3-4 (1980) (articulating "principle of charity"); Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures 3, 20 (1973) (arguing anthropologists should interpret meaning of culture before resorting to causal explanations); Hart, supra note 7, at 86-88 (theory of law should not ignore "internal" standpoint, from which law is understood as normative, in favor of exclusive concern with "external" standpoint, from which law is merely coercion). I suppose I am hopelessly old-fashioned. See J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105, 129 (1993) (asserting "rational reconstruction" of doctrine is not the only valid approach to law, and "does not always accurately predict the behavior of legal officials, and it cannot tell us the practical effects of legal norms").
55. Most theorists cite a single work: Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Anscombe trans., 2d ed. 1958). The challenge to law that is represented by Wittgenstein's theories is concisely explained by Professor Radin as follows: Wittgenstein in Philosophical Investigations is fairly read as rejecting the traditional [formalist] conception of rules in favor of a social practice conception in which agreement in responsive action is the primary mark of the existence of a rule. I also think Wittgenstein is fairly read as a rule-skeptic . . . . There is no way to tell deductively or analytically when a rule is being followed; there is no special state that describes the binding-ness of rules; and traditional formal realizability is not the right way to conceive of the nature of rules. . . . . The result of this skeptical deconstruction of the formalist notion of rules is that rule-following must be understood to be an essentially social phenomenon. Rule-following can only be understood to occur where there is reiterated human action both in responding to directives and in observing others respond.
56. Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 798-99 (1989) (footnotes omitted);
57. see also Langille, supra note 7, at 459 ("References to Wittgenstein have become, as [James] Boyle observes, 'ubiquitous' and his work is referred to as 'basic.'").
58. See, e.g., D'Amato, Failure of the Word "Bird," supra note 6, at 536 n.2 (citing Wittgenstein for view that "words merely represent conventional recurring utterances with no failsafe intrinsic 'meaning'"); Tushnet, supra note 13, at 824 (concluding, after citing Wittgenstein, that "[i]f we accept substantive limitations on the rules that courts can adopt, we abandon the notion of rule-following as a neutral enterprise with no social content; yet if we truly allow all reasonable arguments to be made and possibly accepted, we abandon the notion of rule-following entirely, and with it we abandon the ideal of the rule of law"); see also James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. Pa. L. Rev. 685, 708-13 (1985) (explaining that legal discourse is "slowly assimilating the post-Wittgensteinian view of language").
59. See, e.g., D'Amato, Failure of the Word "Bird," supra note 6, at 536 n.2 (citing Wittgenstein for view that "words merely represent conventional recurring utterances with no failsafe intrinsic 'meaning'"); Tushnet, supra note 13, at 824 (concluding, after citing Wittgenstein, that "[i]f we accept substantive limitations on the rules that courts can adopt, we abandon the notion of rule-following as a neutral enterprise with no social content; yet if we truly allow all reasonable arguments to be made and possibly accepted, we abandon the notion of rule-following entirely, and with it we abandon the ideal of the rule of law"); see also James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. Pa. L. Rev. 685, 708-13 (1985) (explaining that legal discourse is "slowly assimilating the post-Wittgensteinian view of language").
60. See, e.g., D'Amato, Failure of the Word "Bird," supra note 6, at 536 n.2 (citing Wittgenstein for view that "words merely represent conventional recurring utterances with no failsafe intrinsic 'meaning'"); Tushnet, supra note 13, at 824 (concluding, after citing Wittgenstein, that "[i]f we accept substantive limitations on the rules that courts can adopt, we abandon the notion of rule-following as a neutral enterprise with no social content; yet if we truly allow all reasonable arguments to be made and possibly accepted, we abandon the notion of rule-following entirely, and with it we abandon the ideal of the rule of law"); see also James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. Pa. L. Rev. 685, 708-13 (1985) (explaining that legal discourse is "slowly assimilating the post-Wittgensteinian view of language").
61. See Wittgenstein, supra note 19, ¶ 201.
62. This oft-cited interpretation of Wittgenstein hails from Saul A. Kripke, Wittgenstein on Rules and Private Language 17 (1982); see also, Charles M. Yablon, Law and Metaphysics, 96 Yale L.J. 613, 632-33 (1987) (reviewing Kripke's book).
63. This oft-cited interpretation of Wittgenstein hails from Saul A. Kripke, Wittgenstein on Rules and Private Language 17 (1982); see also, Charles M. Yablon, Law and Metaphysics, 96 Yale L.J. 613, 632-33 (1987) (reviewing Kripke's book).
64. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
65. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
66. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
67. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
68. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
69. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
70. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
71. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
72. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
73. See, e.g., Brian Bix, Questions in Legal Interpretation, in Law and Interpretation: Essays in Legal Philosophy 137, 149-50 (Andrei Marmor ed., 1995); Coleman & Leiter, supra note 3, at 571-72 (arguing that Wittgenstein's statements do "not . . . raise doubts about our ability to know the determinate meaning of a rule, but only about the source of that knowledge"); Greenawalt, supra note 7, at 86 ("No sensible understanding of the interpretive process undercuts the conclusion that many legal questions have determinate answers."); Kutz, supra note 12, at 1010-11 ("[W]e might more plausibly conclude from Wittgenstein's argument that normativity and rationality are preserved, not eliminated, through appeal to the shared, natural patterns of affect and reaction which Wittgenstein calls our 'form of life.'"); Schauer, Easy Cases, supra note 7, at 417-20 (arguing that while language cannot be divorced from its content, the system of rules through which it operates certainly enables people with shared context to understand each other); Solum, supra note 7, at 479-81 (arguing that rule-skepticism, while explaining the possibility that legal rules will change meaning if the social context changes, does not create degree of determinacy that has immediate, practical implications). Moderate theorists also argue that the radicals are involved in a skeptic's paradox - their own criticism cannot be meaningful unless they assume that words have meaning. See Kress, supra note 5, at 136 (criticizing one radical's position as "skepticism about the efficacy of linguistic utterances"); Langille, supra note 7, at 474 ("Our strong critics undermine language and our knowledge of the world completely. . . . Yet they have no trouble writing lengthy essays explaining all of this to us."); Martha C. Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 Harv. L. Rev. 714, 736 (1994) (arguing skeptic cannot assert truth of his own thesis); Solum, supra note 7, at 478 (arguing that skeptic's paradox "costs the indeterminacy thesis its critical bite").
74. Kutz, supra note 12, at 1010. Tushnet argues: [A]lthough we can . . . use standard techniques of legal argument to draw from the decided cases the conclusion that the Constitution requires socialism, we know that no judge will in the near future draw that conclusion. But the failure to reach that result is not ensured because the practice of "following rules" or neutral application of the principles inherent in the decided cases precludes a judge from doing so. Rather, it is ensured because judges in contemporary America are selected in a way that keeps them from thinking that such arguments make sense. Tushnet, supra note 13, at 823 (footnotes omitted).
75. Kutz, supra note 12, at 1010. Tushnet argues: [A]lthough we can . . . use standard techniques of legal argument to draw from the decided cases the conclusion that the Constitution requires socialism, we know that no judge will in the near future draw that conclusion. But the failure to reach that result is not ensured because the practice of "following rules" or neutral application of the principles inherent in the decided cases precludes a judge from doing so. Rather, it is ensured because judges in contemporary America are selected in a way that keeps them from thinking that such arguments make sense. Tushnet, supra note 13, at 823 (footnotes omitted).
76. See Radin, supra note 19, at 797 ("Wittgensteinian view of rules may be characterized as both a social and a practice conception.");
77. see also Dennis M. Patterson, Law's Pragmatism: Law as Practice and Narrative, 76 Va. L. Rev. 937, 937-57 (1990) (outlining pragmatist theory of legal discourse based on Wittgenstein's claim that rule following is a practice).
78. See Saul A. Kripke, Wittgenstein on Rules and Private Language: An Elementary Exposition 142 (1982) (describing Wittgenstein's philosophical style as having "skeptical orientation"); D'Amato, Failure of the Word "Bird," supra note 6, at 536 n.2 ("Wittgenstein's teaching [is] that words merely represent conventional recurring utterances with no failsafe, intrinsic 'meaning.'").
79. See Saul A. Kripke, Wittgenstein on Rules and Private Language: An Elementary Exposition 142 (1982) (describing Wittgenstein's philosophical style as having "skeptical orientation"); D'Amato, Failure of the Word "Bird," supra note 6, at 536 n.2 ("Wittgenstein's teaching [is] that words merely represent conventional recurring utterances with no failsafe, intrinsic 'meaning.'").
80. See Brian Bix, Law, Language, and Legal Determinacy 180 (1993); see also Wittgenstein, supra note 19, ¶ 124 ("Philosophy may in no way interfere with the actual use of language; it can in the end only describe it."); Brian Bix, The Application (and Misapplication) of Wittgenstein's Rule-Following Considerations to Legal Theory, in Wittgenstein and Legal Theory 209, 210-17 (Dennis M. Patterson ed., 1992) (arguing skeptics are wrong to read Wittgenstein as espousing view that meaning is entirely up for grabs, but beyond answering radical skepticism, Wittgenstein's analysis says little about legal indeterminacy in hard cases); Langille, supra note 7, at 486-98 (arguing that skeptics misinterpret Wittgenstein's assertions that nothing grounds rule following except form of life by taking form of life to be same as social convention or majority agreement - Wittgenstein uses form of life to refer to deeper sense of human commonality (even biology) that makes language possible); Gene A. Smith, Wittgenstein and the Skeptical Fallacy, in Wittgenstein and Legal Theory, supra, at 157, 157 (arguing that while Wittgenstein's arguments have skeptical foundations, they show that skeptic's skepticism resulted from philosophical confusion).
81. See Brian Bix, Law, Language, and Legal Determinacy 180 (1993); see also Wittgenstein, supra note 19, ¶ 124 ("Philosophy may in no way interfere with the actual use of language; it can in the end only describe it."); Brian Bix, The Application (and Misapplication) of Wittgenstein's Rule-Following Considerations to Legal Theory, in Wittgenstein and Legal Theory 209, 210-17 (Dennis M. Patterson ed., 1992) (arguing skeptics are wrong to read Wittgenstein as espousing view that meaning is entirely up for grabs, but beyond answering radical skepticism, Wittgenstein's analysis says little about legal indeterminacy in hard cases); Langille, supra note 7, at 486-98 (arguing that skeptics misinterpret Wittgenstein's assertions that nothing grounds rule following except form of life by taking form of life to be same as social convention or majority agreement - Wittgenstein uses form of life to refer to deeper sense of human commonality (even biology) that makes language possible); Gene A. Smith, Wittgenstein and the Skeptical Fallacy, in Wittgenstein and Legal Theory, supra, at 157, 157 (arguing that while Wittgenstein's arguments have skeptical foundations, they show that skeptic's skepticism resulted from philosophical confusion).
82. See Brian Bix, Law, Language, and Legal Determinacy 180 (1993); see also Wittgenstein, supra note 19, ¶ 124 ("Philosophy may in no way interfere with the actual use of language; it can in the end only describe it."); Brian Bix, The Application (and Misapplication) of Wittgenstein's Rule-Following Considerations to Legal Theory, in Wittgenstein and Legal Theory 209, 210-17 (Dennis M. Patterson ed., 1992) (arguing skeptics are wrong to read Wittgenstein as espousing view that meaning is entirely up for grabs, but beyond answering radical skepticism, Wittgenstein's analysis says little about legal indeterminacy in hard cases); Langille, supra note 7, at 486-98 (arguing that skeptics misinterpret Wittgenstein's assertions that nothing grounds rule following except form of life by taking form of life to be same as social convention or majority agreement - Wittgenstein uses form of life to refer to deeper sense of human commonality (even biology) that makes language possible); Gene A. Smith, Wittgenstein and the Skeptical Fallacy, in Wittgenstein and Legal Theory, supra, at 157, 157 (arguing that while Wittgenstein's arguments have skeptical foundations, they show that skeptic's skepticism resulted from philosophical confusion).
83. See Brian Bix, Law, Language, and Legal Determinacy 180 (1993); see also Wittgenstein, supra note 19, ¶ 124 ("Philosophy may in no way interfere with the actual use of language; it can in the end only describe it."); Brian Bix, The Application (and Misapplication) of Wittgenstein's Rule-Following Considerations to Legal Theory, in Wittgenstein and Legal Theory 209, 210-17 (Dennis M. Patterson ed., 1992) (arguing skeptics are wrong to read Wittgenstein as espousing view that meaning is entirely up for grabs, but beyond answering radical skepticism, Wittgenstein's analysis says little about legal indeterminacy in hard cases); Langille, supra note 7, at 486-98 (arguing that skeptics misinterpret Wittgenstein's assertions that nothing grounds rule following except form of life by taking form of life to be same as social convention or majority agreement - Wittgenstein uses form of life to refer to deeper sense of human commonality (even biology) that makes language possible); Gene A. Smith, Wittgenstein and the Skeptical Fallacy, in Wittgenstein and Legal Theory, supra, at 157, 157 (arguing that while Wittgenstein's arguments have skeptical foundations, they show that skeptic's skepticism resulted from philosophical confusion).
84. See Brian Bix, Law, Language, and Legal Determinacy 180 (1993); see also Wittgenstein, supra note 19, ¶ 124 ("Philosophy may in no way interfere with the actual use of language; it can in the end only describe it."); Brian Bix, The Application (and Misapplication) of Wittgenstein's Rule-Following Considerations to Legal Theory, in Wittgenstein and Legal Theory 209, 210-17 (Dennis M. Patterson ed., 1992) (arguing skeptics are wrong to read Wittgenstein as espousing view that meaning is entirely up for grabs, but beyond answering radical skepticism, Wittgenstein's analysis says little about legal indeterminacy in hard cases); Langille, supra note 7, at 486-98 (arguing that skeptics misinterpret Wittgenstein's assertions that nothing grounds rule following except form of life by taking form of life to be same as social convention or majority agreement - Wittgenstein uses form of life to refer to deeper sense of human commonality (even biology) that makes language possible); Gene A. Smith, Wittgenstein and the Skeptical Fallacy, in Wittgenstein and Legal Theory, supra, at 157, 157 (arguing that while Wittgenstein's arguments have skeptical foundations, they show that skeptic's skepticism resulted from philosophical confusion).
85. See Wittgenstein, supra note 19, ¶¶ 65-75 (meaning of words is not matter of "seeing what is common" to all objects that share name).
86. See id. ¶¶ 28-35 (ostensive definition requires preexisting practice in order to make sense - it cannot itself ground meaning).
87. See id. ¶ 139 (meaning of words is not a mental picture); id. ¶¶ 141, 147, 151, 152-54, 180 (meaning of words is not a mental state); id. ¶ 156 (meaning of words is not a mental process); id. ¶ 230 (meaning of words is not an intimation).
88. See id. ¶ 43 ("For a large class of cases - though not for all - in which we employ the word 'meaning' it can be defined thus: the meaning of a word is its use in the language."); see also id. ¶¶ 224-42, 325-26 (rule following of any kind - including using language - requires "agreement in form of life").
89. See Bix, supra note 23, at 137-42. Bix points out that H.L.A. Hart, in Wittgensteinian fashion, tried to steer legal theorists away from determining the meaning of a legal term or concept by "trying to discover what thing in the world the term named" and to direct them instead to focus on "how the term is used within legal discourse." Id. at 138. He then applies this view to an analysis of the term "legislative intent," concluding there is no Platonic idea of "legislative intent" that applies across legal systems. Id. at 142-46.
90. See supra note 8.
91. See Wittgenstein, supra note 19, ¶¶ 65-71.
92. See id. ¶¶ 88, 91.
93. See id.
94. See id. ¶ 86 ("Can we not now imagine further rules to explain this one?"); id. ¶ 87 ("[A]n explanation serves to remove or to avert a misunderstanding - one, that is, that would occur but for the explanation; not every one that I can imagine."); id. ¶ 91 ("[W]e eliminate misunderstandings by making our expressions more exact; but now it may look as if we were moving towards a particular state, a state of complete exactness; and as if this were the real goal of our investigation.").
95. See, e.g., Coleman & Leiter, supra note 3, at 561-64 (presenting different definitions of epistemological determinacy); Kress, supra note 5, at 139 (same); Solum, supra note 7, at 473 (same). Perhaps this point is not so new: This view of the law [as an expression of the will of the State, consisting of statutory enactments] . . . is expressly asserted by the eminent reformers to whom we owe the New York civil code §§ 2, 3; who thus demonstrate their incompetency for the tremendous task they have so confidently assumed, not only by the false definition, but by violating the obvious principle that definitions do not come within the province of the legislator, except so far as it may be necessary for him, like other people, to explain his own meaning. The principle is well illustrated by the story of the Roman emperor, who was reproved by a distinguished grammarian for the use of an incorrect term, but justified by one Capito, on the ground that the unlimited power and will of the sovereign itself made the term correct. "Capito is a liar, Caesar," was the reply; "you can make a Roman citizen, but you cannot make a Latin word." The truth expressed is that language, being of natural and spontaneous growth, is above and beyond the will of the sovereign; and the principle applies equally to the definition and meaning of proper terms, as to the use of improper ones. Smith, supra note 5, at 702-03.
96. See, e.g., Coleman & Leiter, supra note 3, at 561-64 (presenting different definitions of epistemological determinacy); Kress, supra note 5, at 139 (same); Solum, supra note 7, at 473 (same). Perhaps this point is not so new: This view of the law [as an expression of the will of the State, consisting of statutory enactments] . . . is expressly asserted by the eminent reformers to whom we owe the New York civil code §§ 2, 3; who thus demonstrate their incompetency for the tremendous task they have so confidently assumed, not only by the false definition, but by violating the obvious principle that definitions do not come within the province of the legislator, except so far as it may be necessary for him, like other people, to explain his own meaning. The principle is well illustrated by the story of the Roman emperor, who was reproved by a distinguished grammarian for the use of an incorrect term, but justified by one Capito, on the ground that the unlimited power and will of the sovereign itself made the term correct. "Capito is a liar, Caesar," was the reply; "you can make a Roman citizen, but you cannot make a Latin word." The truth expressed is that language, being of natural and spontaneous growth, is above and beyond the will of the sovereign; and the principle applies equally to the definition and meaning of proper terms, as to the use of improper ones. Smith, supra note 5, at 702-03.
97. See, e.g., Coleman & Leiter, supra note 3, at 561-64 (presenting different definitions of epistemological determinacy); Kress, supra note 5, at 139 (same); Solum, supra note 7, at 473 (same). Perhaps this point is not so new: This view of the law [as an expression of the will of the State, consisting of statutory enactments] . . . is expressly asserted by the eminent reformers to whom we owe the New York civil code §§ 2, 3; who thus demonstrate their incompetency for the tremendous task they have so confidently assumed, not only by the false definition, but by violating the obvious principle that definitions do not come within the province of the legislator, except so far as it may be necessary for him, like other people, to explain his own meaning. The principle is well illustrated by the story of the Roman emperor, who was reproved by a distinguished grammarian for the use of an incorrect term, but justified by one Capito, on the ground that the unlimited power and will of the sovereign itself made the term correct. "Capito is a liar, Caesar," was the reply; "you can make a Roman citizen, but you cannot make a Latin word." The truth expressed is that language, being of natural and spontaneous growth, is above and beyond the will of the sovereign; and the principle applies equally to the definition and meaning of proper terms, as to the use of improper ones. Smith, supra note 5, at 702-03.
98. See, e.g., Coleman & Leiter, supra note 3, at 561-64 (presenting different definitions of epistemological determinacy); Kress, supra note 5, at 139 (same); Solum, supra note 7, at 473 (same). Perhaps this point is not so new: This view of the law [as an expression of the will of the State, consisting of statutory enactments] . . . is expressly asserted by the eminent reformers to whom we owe the New York civil code §§ 2, 3; who thus demonstrate their incompetency for the tremendous task they have so confidently assumed, not only by the false definition, but by violating the obvious principle that definitions do not come within the province of the legislator, except so far as it may be necessary for him, like other people, to explain his own meaning. The principle is well illustrated by the story of the Roman emperor, who was reproved by a distinguished grammarian for the use of an incorrect term, but justified by one Capito, on the ground that the unlimited power and will of the sovereign itself made the term correct. "Capito is a liar, Caesar," was the reply; "you can make a Roman citizen, but you cannot make a Latin word." The truth expressed is that language, being of natural and spontaneous growth, is above and beyond the will of the sovereign; and the principle applies equally to the definition and meaning of proper terms, as to the use of improper ones. Smith, supra note 5, at 702-03.
99. When philosophers use a word - "knowledge", "being", "object", "I", "proposition", "name" - and try to grasp the essence of the thing, one must always ask oneself: is the word ever actually used in this way in the language-game which is its original home? - What we do is to bring words back from their metaphysical to their everyday use. Wittgenstein, supra note 19, ¶ 116. Other theorists have also suggested, though from a different perspective, that the dichotomy between determinists and indeterminists is a false one. Duncan Kennedy and Jack Balkin both emphasize the dialectical relationship the judge experiences between the law "out there" and the "way the judge wants to come out." Both theorists powerfully show that the judge's perspective on his normative goals is influenced by the law he perceives, just as the law he perceives is influenced by his normative goals. See Duncan Kennedy, Toward a Critical Phenomenology of Judging, in The Rule of Law: Ideal or Ideology 141, 166 (Allan C. Hutchinson & Patrick Monahan eds., 1987) ("The rule may at any given moment appear objective, but at the next moment it may appear manipulable. It is not, as I apprehend it from within the practice of legal argument, essentially one thing or the other."); Balkin, supra note 18, at 130 (legal understanding not objective or subjective, but consists of "hermeneutical toolbox"). Thomas Morawetz also has argued that the experience of judging requires constant interplay between one's own style of reasoning and justification and that of others within the same practice: Thinking of law as a deliberative practice allows us to reconceive the fluidity and the boundedness of law. The concept of law refers to several things. First, the law for each judge, and for each observer, consists of decisions and justificatory arguments that that judge regards as appropriate given her ways of reasoning and her sense of law's purposes. Second, the law may include the collection of decisions and justificatory strategies that are mutually regarded as legally relevant. Finally, the law may be said to refer to decisions apart from the justificatory arguments supporting them. . . . I have argued that this [last] is not possible. Thomas Morawetz, Understanding Disagreement, The Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. Pa. L. Rev. 371, 455-56 (1992). While I agree with many of the insights expressed in these works, my point here is a bit different. I argue that indeterminacy itself is a tool (a "game"?) within the practice of judging (and hence within the doctrine), not just a description of either law or (sometimes) the phenomenology of judging.
100. When philosophers use a word - "knowledge", "being", "object", "I", "proposition", "name" - and try to grasp the essence of the thing, one must always ask oneself: is the word ever actually used in this way in the language-game which is its original home? - What we do is to bring words back from their metaphysical to their everyday use. Wittgenstein, supra note 19, ¶ 116. Other theorists have also suggested, though from a different perspective, that the dichotomy between determinists and indeterminists is a false one. Duncan Kennedy and Jack Balkin both emphasize the dialectical relationship the judge experiences between the law "out there" and the "way the judge wants to come out." Both theorists powerfully show that the judge's perspective on his normative goals is influenced by the law he perceives, just as the law he perceives is influenced by his normative goals. See Duncan Kennedy, Toward a Critical Phenomenology of Judging, in The Rule of Law: Ideal or Ideology 141, 166 (Allan C. Hutchinson & Patrick Monahan eds., 1987) ("The rule may at any given moment appear objective, but at the next moment it may appear manipulable. It is not, as I apprehend it from within the practice of legal argument, essentially one thing or the other."); Balkin, supra note 18, at 130 (legal understanding not objective or subjective, but consists of "hermeneutical toolbox"). Thomas Morawetz also has argued that the experience of judging requires constant interplay between one's own style of reasoning and justification and that of others within the same practice: Thinking of law as a deliberative practice allows us to reconceive the fluidity and the boundedness of law. The concept of law refers to several things. First, the law for each judge, and for each observer, consists of decisions and justificatory arguments that that judge regards as appropriate given her ways of reasoning and her sense of law's purposes. Second, the law may include the collection of decisions and justificatory strategies that are mutually regarded as legally relevant.
101. When philosophers use a word - "knowledge", "being", "object", "I", "proposition", "name" - and try to grasp the essence of the thing, one must always ask oneself: is the word ever actually used in this way in the language-game which is its original home? - What we do is to bring words back from their metaphysical to their everyday use. Wittgenstein, supra note 19, ¶ 116. Other theorists have also suggested, though from a different perspective, that the dichotomy between determinists and indeterminists is a false one. Duncan Kennedy and Jack Balkin both emphasize the dialectical relationship the judge experiences between the law "out there" and the "way the judge wants to come out." Both theorists powerfully show that the judge's perspective on his normative goals is influenced by the law he perceives, just as the law he perceives is influenced by his normative goals. See Duncan Kennedy, Toward a Critical Phenomenology of Judging, in The Rule of Law: Ideal or Ideology 141, 166 (Allan C. Hutchinson & Patrick Monahan eds., 1987) ("The rule may at any given moment appear objective, but at the next moment it may appear manipulable. It is not, as I apprehend it from within the practice of legal argument, essentially one thing or the other."); Balkin, supra note 18, at 130 (legal understanding not objective or subjective, but consists of "hermeneutical toolbox"). Thomas Morawetz also has argued that the experience of judging requires constant interplay between one's own style of reasoning and justification and that of others within the same practice: Thinking of law as a deliberative practice allows us to reconceive the fluidity and the boundedness of law. The concept of law refers to several things. First, the law for each judge, and for each observer, consists of decisions and justificatory arguments that that judge regards as appropriate given her ways of reasoning and her sense of law's purposes. Second, the law may include the collection of decisions and justificatory strategies that are mutually regarded as legally relevant. Finally, the law may be said to refer to decisions apart from the justificatory arguments supporting them. . . . I have argued that this [last] is not possible. Thomas Morawetz, Understanding Disagreement, The Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. Pa. L. Rev. 371, 455-56 (1992). While I agree with many of the insights expressed in these works, my point here is a bit different. I argue that indeterminacy itself is a tool (a "game"?) within the practice of judging (and hence within the doctrine), not just a description of either law or (sometimes) the phenomenology of judging.
102. When philosophers use a word - "knowledge", "being", "object", "I", "proposition", "name" - and try to grasp the essence of the thing, one must always ask oneself: is the word ever actually used in this way in the language-game which is its original home? - What we do is to bring words back from their metaphysical to their everyday use. Wittgenstein, supra note 19, ¶ 116. Other theorists have also suggested, though from a different perspective, that the dichotomy between determinists and indeterminists is a false one. Duncan Kennedy and Jack Balkin both emphasize the dialectical relationship the judge experiences between the law "out there" and the "way the judge wants to come out." Both theorists powerfully show that the judge's perspective on his normative goals is influenced by the law he perceives, just as the law he perceives is influenced by his normative goals. See Duncan Kennedy, Toward a Critical Phenomenology of Judging, in The Rule of Law: Ideal or Ideology 141, 166 (Allan C. Hutchinson & Patrick Monahan eds., 1987) ("The rule may at any given moment appear objective, but at the next moment it may appear manipulable. It is not, as I apprehend it from within the practice of legal argument, essentially one thing or the other."); Balkin, supra note 18, at 130 (legal understanding not objective or subjective, but consists of "hermeneutical toolbox"). Thomas Morawetz also has argued that the experience of judging requires constant interplay between one's own style of reasoning and justification and that of others within the same practice: Thinking of law as a deliberative practice allows us to reconceive the fluidity and the boundedness of law. The concept of law refers to several things. First, the law for each judge, and for each observer, consists of decisions and justificatory arguments that that judge regards as appropriate given her ways of reasoning and her sense of law's purposes. Second, the law may include the collection of decisions and justificatory strategies that are mutually regarded as legally relevant. Finally, the law may be said to refer to decisions apart from the justificatory arguments supporting them. . . . I have argued that this [last] is not possible. Thomas Morawetz, Understanding Disagreement, The Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. Pa. L. Rev. 371, 455-56 (1992). While I agree with many of the insights expressed in these works, my point here is a bit different. I argue that indeterminacy itself is a tool (a "game"?) within the practice of judging (and hence within the doctrine), not just a description of either law or (sometimes) the phenomenology of judging.
103. The federal courts have inherent power to sanction attorneys who practice before them. See Hall v. Cole, 412 U.S. 1, 15 (1973). This power is limited, however, to sanctioning bad faith conduct. See, e.g., Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995). Additionally, various federal statutes provide for attorney's fees in cases in which frivolous claims are filed. See 28 U.S.C. § 1447(c) (1994) (allowing fees for improper removal); id. § 1927 (1994) (allowing fees for "unreasonably and vexatiously" multiplying the proceedings); 33 U.S.C. § 926 (1994) (providing costs of groundless proceedings may be awarded in cases under Longshore and Harbor Workers' Compensation Act); 42 U.S.C. § 1988(b), (c) (1994) (allowing reasonable attorney and expert fees as part of costs); Fed. R. App. P. 38 (permitting sanctions, including single or double costs and "just damages," to appellee for frivolous appeal); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417, 421 (1978) (holding that prevailing § 1983 plaintiff is awarded attorney's fees in all but special circumstances; prevailing defendant is awarded fees if plaintiff's claim is "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith"); Nasatka v. Delta Scientific Corp., 58 F.3d 1578, 1582 (Fed. Cir. 1995) (construing Rule 38 to allow awarding attorney's fees where appeal is filed on moot issue and appellate court previously advised appellant of proper alternative course of action); Estate of Washington v. Secretary of Health & Human Servs., 53 F.3d 1173, 1176 (10th Cir. 1995) (holding § 1927 requires "recklessness or indifference"); Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997, 1002-03 (5th Cir. 1995) (construing § 926 to grant power to award attorney's fees only to courts, not to Administrative Law Judges or Benefits Review Board); Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1357 (3d Cir. 1990) (holding § 1927 requires bad faith).
104. Fed. R. Civ. P. 11(b)(2). Before 1983, Rule 11 required an attorney to sign all pleadings, certifying that "he has read the pleading; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay." Fed R. Civ. P. 11 (1982) (repealed 1983). Very few courts sanctioned attorneys under this rule, since it required a finding of bad faith and since the only sanctions available were (1) striking the pleading and (2) subjecting the attorney to "appropriate disciplinary action." Id. In 1983, the Rule was amended to require attorneys to certify by their signature that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose. Fed. R. Civ. P. 11 (1988) (effective 1983, repealed 1993). In addition to changing from a subjective to an objective standard of care, the Rule provided for monetary sanctions, previously unavailable, and required courts to impose sanctions once a violation was found. In 1993, the Rule was again amended. While softened in some respects, such as making the imposition of sanctions discretionary rather than mandatory and allowing a party a chance to withdraw a pleading voluntarily without sanction, the objective standard was toughened. The previous version of Rule 11 allowed "good faith argument for the extension, modification, or reversal of existing law." The 1993 amendments require such arguments to be "nonfrivolous" as well. Fed. R. Civ. P. 11(b)(2) provides: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . . (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law . . . . The Advisory Committee Notes explain: Arguments for extensions, modifications, or reversals of existing law or for creation of new law do not violate subdivision (b)(2) provided they are "nonfrivolous." This establishes an objective standard, intended to eliminate any "empty-head pure-heart" justification for patently frivolous arguments. However, the extent to which a litigant has researched the issues and found some support for its theories even in minority opinions, in law review articles, or through consultation with other attorneys should certainly be taken into account in determining whether paragraph (2) has been violated. Although arguments for a change of law are not required to be specifically so identified, a contention that is so identified should be viewed with greater tolerance under the rule. Fed. R. Civ. P. 11(b) advisory committee's note; see also Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1326-31 (2d Cir. 1995) (explaining and employing new amendments to Rule 11); William W Schwarzer, Rule 11: Entering a New Era, 28 Loy. L.A. L. Rev. 7, 12-32 (1994) (explaining 1993 amendments and their importance for application of Rule); Georgene M. Vairo, The New Rule 11: Past as Prologue?, 28 Loy. L.A. L. Rev. 39, 52-83 (1994) (same).
105. Fed. R. Civ. P. 11(b)(2). Before 1983, Rule 11 required an attorney to sign all pleadings, certifying that "he has read the pleading; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay." Fed R. Civ. P. 11 (1982) (repealed 1983). Very few courts sanctioned attorneys under this rule, since it required a finding of bad faith and since the only sanctions available were (1) striking the pleading and (2) subjecting the attorney to "appropriate disciplinary action." Id. In 1983, the Rule was amended to require attorneys to certify by their signature that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose. Fed. R. Civ. P. 11 (1988) (effective 1983, repealed 1993). In addition to changing from a subjective to an objective standard of care, the Rule provided for monetary sanctions, previously unavailable, and required courts to impose sanctions once a violation was found. In 1993, the Rule was again amended. While softened in some respects, such as making the imposition of sanctions discretionary rather than mandatory and allowing a party a chance to withdraw a pleading voluntarily without sanction, the objective standard was toughened. The previous version of Rule 11 allowed "good faith argument for the extension, modification, or reversal of existing law." The 1993 amendments require such arguments to be "nonfrivolous" as well. Fed. R. Civ. P. 11(b)(2) provides: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . . (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law . . . . The Advisory Committee Notes explain: Arguments for extensions, modifications, or reversals of existing law or for creation of new law do not violate subdivision (b)(2) provided they are "nonfrivolous." This establishes an objective standard, intended to eliminate any "empty-head pure-heart" justification for patently frivolous arguments. However, the extent to which a litigant has researched the issues and found some support for its theories even in minority opinions, in law review articles, or through consultation with other attorneys should certainly be taken into account in determining whether paragraph (2) has been violated. Although arguments for a change of law are not required to be specifically so identified, a contention that is so identified should be viewed with greater tolerance under the rule. Fed. R. Civ. P. 11(b) advisory committee's note; see also Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1326-31 (2d Cir. 1995) (explaining and employing new amendments to Rule 11); William W Schwarzer, Rule 11: Entering a New Era, 28 Loy. L.A. L. Rev. 7, 12-32 (1994) (explaining 1993 amendments and their importance for application of Rule); Georgene M. Vairo, The New Rule 11: Past as Prologue?, 28 Loy. L.A. L. Rev. 39, 52-83 (1994) (same).
106. Fed. R. Civ. P. 11(b)(2). Before 1983, Rule 11 required an attorney to sign all pleadings, certifying that "he has read the pleading; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay." Fed R. Civ. P. 11 (1982) (repealed 1983). Very few courts sanctioned attorneys under this rule, since it required a finding of bad faith and since the only sanctions available were (1) striking the pleading and (2) subjecting the attorney to "appropriate disciplinary action." Id. In 1983, the Rule was amended to require attorneys to certify by their signature that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose. Fed. R. Civ. P. 11 (1988) (effective 1983, repealed 1993). In addition to changing from a subjective to an objective standard of care, the Rule provided for monetary sanctions, previously unavailable, and required courts to impose sanctions once a violation was found. In 1993, the Rule was again amended. While softened in some respects, such as making the imposition of sanctions discretionary rather than mandatory and allowing a party a chance to withdraw a pleading voluntarily without sanction, the objective standard was toughened. The previous version of Rule 11 allowed "good faith argument for the extension, modification, or reversal of existing law." The 1993 amendments require such arguments to be "nonfrivolous" as well. Fed. R. Civ. P. 11(b)(2) provides: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . . (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law . . . . The Advisory Committee Notes explain: Arguments for extensions, modifications, or reversals of existing law or for creation of new law do not violate subdivision (b)(2) provided they are "nonfrivolous." This establishes an objective standard, intended to eliminate any "empty-head pure-heart" justification for patently frivolous arguments. However, the extent to which a litigant has researched the issues and found some support for its theories even in minority opinions, in law review articles, or through consultation with other attorneys should certainly be taken into account in determining whether paragraph (2) has been violated. Although arguments for a change of law are not required to be specifically so identified, a contention that is so identified should be viewed with greater tolerance under the rule. Fed. R. Civ. P. 11(b) advisory committee's note; see also Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1326-31 (2d Cir. 1995) (explaining and employing new amendments to Rule 11); William W Schwarzer, Rule 11: Entering a New Era, 28 Loy. L.A. L. Rev. 7, 12-32 (1994) (explaining 1993 amendments and their importance for application of Rule); Georgene M. Vairo, The New Rule 11: Past as Prologue?, 28 Loy. L.A. L. Rev. 39, 52-83 (1994) (same).
107. I do not discuss cases imposing Rule 11 sanctions for ineptness in investigating factual questions or for ignoring prior orders of the court in the case at bar, as these cases do not require judges to decide whether the law is indeterminate. I do look at "unpublished" cases available in computer research data banks as well as "published" cases. As some commentators have seen, the law one garners from "published" cases looks very different from the law in "unpublished" cases. Cf. Lawrence C. Marshall et al., Public Policy: The Use and Impact of Rule 11, 86 Nw. U. L. Rev. 943, 944 (1992) (commenting on difficulty in discerning application of Rule 11 sanctions because of possibility of different reporting frequencies for different types of cases). Indeed, the Magritte-like practice of declaring that "this decision is not a decision" is more than a little dubious, however efficient it may be. See Peter Siegelman & John J. Donohue III, Studying the Iceberg from Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases, 24 Law & Soc'y Rev. 1133 (1990) (arguing that published employment discrimination cases are significantly different from unpublished cases). Ninth Circuit law on Rule 11 is a case in point. While most of the published opinions of the Ninth Circuit indicate great leniency in interpreting Rule 11, the unpublished opinions are much harsher. Compare Warren v. City of Carlsbad, 58 F.3d 439, 444-45 (9th Cir. 1995) (holding that plaintiff who had made out prima facie case of racial discrimination should not have been sanctioned), cert. denied, 116 S. Ct. 1261 (1996) and Larez v. Holcomb, 16 F.3d 1513, 1522 (9th Cir. 1994) (holding argument for jury trial of attorney's fees on Rule 11 issue not frivolous, even though no controlling authority cited, because it counts as good faith argument for extension of law) and Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, 873 F.2d 1327, 1329-30 (9th Cir. 1989) (reversing sanctions on grounds that third-party complaint not baseless, since interpleader allowed for someone who may be liable to plaintiff) and Ault v. Hustler Magazine, 860 F.2d 877, 883-84 (9th Cir. 1988) (reversing sanctions imposed after plaintiff's counsel failed to defend claims in complaint upon motion to dismiss because plaintiff could have made an argument for legal change, given "grievous assault" to plaintiff's dignity perpetrated by defendant), cert. denied, 489 U.S. 1080 (1989) and Operating Eng'rs Pension Trust v. A-C Co., 859 F.2d 1336, 1343-45 (9th Cir. 1988) (reversing sanctions and finding plaintiff's claim that collective bargaining agreement should be interpreted differently than another with similar wording not frivolous but meritorious) and Hudson v. Moore Business Forms, Inc., 836 F.2d 1156, 1159-60 (9th Cir. 1987) (reversing sanctions; employer's argument that employee's behavior violated implied covenant of good faith and fair dealing nonfrivolous because law "still evolving") with Bellows v. Skinner, No. 94-36138, 1995 U.S. App. LEXIS 31571, at *1-*3 (9th Cir. Oct. 27, 1995) (unpublished opinion) (upholding sanctions; Bivens suit against FAA officials for suspending plaintiffs' FAA certificates frivolous because existing law clearly granted FAA right to do so and arguments for extension of law out of place in qualified immunity context) and Orlando v. Hotel Employees & Restaurant Employees Int'l Union Welfare Fund, No. 93-15715, 1995 U.S. App. LEXIS 1137, at *14-*16 (9th Cir. Jan. 11, 1995) (unpublished opinion) (upholding sanctions imposed for plaintiff's failure to discover ERISA preemption) and Mavity v. American Protectors Ins. Co., CA No. 92-15197, 1993 U.S. App. LEXIS 31074, at *8-*11 (9th Cir. Nov. 22, 1993) (unpublished opinion) (upholding sanctions; claim for ERISA benefits frivolous because plaintiffs failed to exhaust administrative remedies) and Pioneer Lumber Treating Inc. v. Cox, Nos. 92-15236, -15279, 1993 U.S. App. LEXIS 24725, at *7-*14 (9th Cir. Sept. 22, 1993) (unpublished opinion) (upholding sanctions, citing various defects in RICO and § 1985 claims in complaint, poor profiling inquiry, and bad faith in filing bankruptcy petition) and Mafnas v. Commonwealth of N. Mariana Islands, No. 92-17008, 1993 U.S. App. LEXIS 21816, at *3-*5 (9th Cir. Aug. 20, 1993) (unpublished opinion) (upholding sanctions on grounds that alleged jurisdictional uncertainty did not excuse plaintiff for filing appeals in both old appellate division of District Court for Northern Mariana Islands and new Supreme Court of Commonwealth because law as to jurisdiction was clear).
108. I do not discuss cases imposing Rule 11 sanctions for ineptness in investigating factual questions or for ignoring prior orders of the court in the case at bar, as these cases do not require judges to decide whether the law is indeterminate. I do look at "unpublished" cases available in computer research data banks as well as "published" cases. As some commentators have seen, the law one garners from "published" cases looks very different from the law in "unpublished" cases. Cf. Lawrence C. Marshall et al., Public Policy: The Use and Impact of Rule 11, 86 Nw. U. L. Rev. 943, 944 (1992) (commenting on difficulty in discerning application of Rule 11 sanctions because of possibility of different reporting frequencies for different types of cases). Indeed, the Magritte-like practice of declaring that "this decision is not a decision" is more than a little dubious, however efficient it may be. See Peter Siegelman & John J. Donohue III, Studying the Iceberg from Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases, 24 Law & Soc'y Rev. 1133 (1990) (arguing that published employment discrimination cases are significantly different from unpublished cases). Ninth Circuit law on Rule 11 is a case in point. While most of the published opinions of the Ninth Circuit indicate great leniency in interpreting Rule 11, the unpublished opinions are much harsher. Compare Warren v. City of Carlsbad, 58 F.3d 439, 444-45 (9th Cir. 1995) (holding that plaintiff who had made out prima facie case of racial discrimination should not have been sanctioned), cert. denied, 116 S. Ct. 1261 (1996) and Larez v. Holcomb, 16 F.3d 1513, 1522 (9th Cir. 1994) (holding argument for jury trial of attorney's fees on Rule 11 issue not frivolous, even though no controlling authority cited, because it counts as good faith argument for extension of law) and Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, 873 F.2d 1327, 1329-30 (9th Cir. 1989) (reversing sanctions on grounds that third-party complaint not baseless, since interpleader allowed for someone who may be liable to plaintiff) and Ault v. Hustler Magazine, 860 F.2d 877, 883-84 (9th Cir. 1988) (reversing sanctions imposed after plaintiff's counsel failed to defend claims in complaint upon motion to dismiss because plaintiff could have made an argument for legal change, given "grievous assault" to plaintiff's dignity perpetrated by defendant), cert. denied, 489 U.S. 1080 (1989) and Operating Eng'rs Pension Trust v. A-C Co., 859 F.2d 1336, 1343-45 (9th Cir. 1988) (reversing sanctions and finding plaintiff's claim that collective bargaining agreement should be interpreted differently than another with similar wording not frivolous but meritorious) and Hudson v. Moore Business Forms, Inc., 836 F.2d 1156, 1159-60 (9th Cir. 1987) (reversing sanctions; employer's argument that employee's behavior violated implied covenant of good faith and fair dealing nonfrivolous because law "still evolving") with Bellows v. Skinner, No. 94-36138, 1995 U.S. App. LEXIS 31571, at *1-*3 (9th Cir. Oct. 27, 1995) (unpublished opinion) (upholding sanctions; Bivens suit against FAA officials for suspending plaintiffs' FAA certificates frivolous because existing law clearly granted FAA right to do so and arguments for extension of law out of place in qualified immunity context) and Orlando v. Hotel Employees & Restaurant Employees Int'l Union Welfare Fund, No. 93-15715, 1995 U.S. App. LEXIS 1137, at *14-*16 (9th Cir. Jan. 11, 1995) (unpublished opinion) (upholding sanctions imposed for plaintiff's failure to discover ERISA preemption) and Mavity v. American Protectors Ins. Co., CA No. 92-15197, 1993 U.S. App. LEXIS 31074, at *8-*11 (9th Cir. Nov. 22, 1993) (unpublished opinion) (upholding sanctions; claim for ERISA benefits frivolous because plaintiffs failed to exhaust administrative remedies) and Pioneer Lumber Treating Inc. v. Cox, Nos. 92-15236, -15279, 1993 U.S. App. LEXIS 24725, at *7-*14 (9th Cir. Sept. 22, 1993) (unpublished opinion) (upholding sanctions, citing various defects in RICO and § 1985 claims in complaint, poor profiling inquiry, and bad faith in filing bankruptcy petition) and Mafnas v. Commonwealth of N. Mariana Islands, No. 92-17008, 1993 U.S. App. LEXIS 21816, at *3-*5 (9th Cir. Aug. 20, 1993) (unpublished opinion) (upholding sanctions on grounds that alleged jurisdictional uncertainty did not excuse plaintiff for filing appeals in both old appellate division of District Court for Northern Mariana Islands and new Supreme Court of Commonwealth because law as to jurisdiction was clear).
109. I do not discuss cases imposing Rule 11 sanctions for ineptness in investigating factual questions or for ignoring prior orders of the court in the case at bar, as these cases do not require judges to decide whether the law is indeterminate. I do look at "unpublished" cases available in computer research data banks as well as "published" cases. As some commentators have seen, the law one garners from "published" cases looks very different from the law in "unpublished" cases. Cf. Lawrence C. Marshall et al., Public Policy: The Use and Impact of Rule 11, 86 Nw. U. L. Rev. 943, 944 (1992) (commenting on difficulty in discerning application of Rule 11 sanctions because of possibility of different reporting frequencies for different types of cases). Indeed, the Magritte-like practice of declaring that "this decision is not a decision" is more than a little dubious, however efficient it may be. See Peter Siegelman & John J. Donohue III, Studying the Iceberg from Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases, 24 Law & Soc'y Rev. 1133 (1990) (arguing that published employment discrimination cases are significantly different from unpublished cases). Ninth Circuit law on Rule 11 is a case in point. While most of the published opinions of the Ninth Circuit indicate great leniency in interpreting Rule 11, the unpublished opinions are much harsher. Compare Warren v. City of Carlsbad, 58 F.3d 439, 444-45 (9th Cir. 1995) (holding that plaintiff who had made out prima facie case of racial discrimination should not have been sanctioned), cert. denied, 116 S. Ct. 1261 (1996) and Larez v. Holcomb, 16 F.3d 1513, 1522 (9th Cir. 1994) (holding argument for jury trial of attorney's fees on Rule 11 issue not frivolous, even though no controlling authority cited, because it counts as good faith argument for extension of law) and Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, 873 F.2d 1327, 1329-30 (9th Cir. 1989) (reversing sanctions on grounds that third-party complaint not baseless, since interpleader allowed for someone who may be liable to plaintiff) and Ault v. Hustler Magazine, 860 F.2d 877, 883-84 (9th Cir. 1988) (reversing sanctions imposed after plaintiff's counsel failed to defend claims in complaint upon motion to dismiss because plaintiff could have made an argument for legal change, given "grievous assault" to plaintiff's dignity perpetrated by defendant), cert. denied, 489 U.S. 1080 (1989) and Operating Eng'rs Pension Trust v. A-C Co., 859 F.2d 1336, 1343-45 (9th Cir. 1988) (reversing sanctions and finding plaintiff's claim that collective bargaining agreement should be interpreted differently than another with similar wording not frivolous but meritorious) and Hudson v. Moore Business Forms, Inc., 836 F.2d 1156, 1159-60 (9th Cir. 1987) (reversing sanctions; employer's argument that employee's behavior violated implied covenant of good faith and fair dealing nonfrivolous because law "still evolving") with Bellows v. Skinner, No. 94-36138, 1995 U.S. App. LEXIS 31571, at *1-*3 (9th Cir. Oct. 27, 1995) (unpublished opinion) (upholding sanctions; Bivens suit against FAA officials for suspending plaintiffs' FAA certificates frivolous because existing law clearly granted FAA right to do so and arguments for extension of law out of place in qualified immunity context) and Orlando v. Hotel Employees & Restaurant Employees Int'l Union Welfare Fund, No. 93-15715, 1995 U.S. App. LEXIS 1137, at *14-*16 (9th Cir. Jan. 11, 1995) (unpublished opinion) (upholding sanctions imposed for plaintiff's failure to discover ERISA preemption) and Mavity v. American Protectors Ins. Co., CA No. 92-15197, 1993 U.S. App. LEXIS 31074, at *8-*11 (9th Cir. Nov. 22, 1993) (unpublished opinion) (upholding sanctions; claim for ERISA benefits frivolous because plaintiffs failed to exhaust administrative remedies) and Pioneer Lumber Treating Inc. v. Cox, Nos. 92-15236, -15279, 1993 U.S. App. LEXIS 24725, at *7-*14 (9th Cir. Sept. 22, 1993) (unpublished opinion) (upholding sanctions, citing various defects in RICO and § 1985 claims in complaint, poor profiling inquiry, and bad faith in filing bankruptcy petition) and Mafnas v. Commonwealth of N. Mariana Islands, No. 92-17008, 1993 U.S. App. LEXIS 21816, at *3-*5 (9th Cir. Aug. 20, 1993) (unpublished opinion) (upholding sanctions on grounds that alleged jurisdictional uncertainty did not excuse plaintiff for filing appeals in both old appellate division of District Court for Northern Mariana Islands and new Supreme Court of Commonwealth because law as to jurisdiction was clear).
110. See Saul M. Kassin, An Empirical Study of Rule 11 Sanctions (Federal Judicial Ctr. 1985). The 292 federal judges responded to 10 case scenarios drawn from then-current cases. See id. at 17. Of the judges, 97.2% found a Rule 11 violation in a case in which a complaint charged a nationwide trademark infringement conspiracy when the plaintiff was aware of only one infringing product and had done no investigation into the scope of the infringement before filing. See id. at 17-23, 49-68. Of the other nine scenarios, the only other scenario in which the judges reached significant agreement (83.4%) on an issue of legal (rather than factual) frivolousness involved a tax protester case in which the plaintiffs protested a tax penalty assessed against them for failing to file a tax return on Fifth Amendment grounds. See id. One of five other hypothetical cases involving issues of legal frivolousness (in the areas of civil rights, securities, and voting rights) generated 75.9% agreement, while the rest of the cases of legal frivolousness generated only 65.6% agreement or less - little better than chance. See id. at 17, 49-68.
111. See, e.g., Warren, 58 F.3d at 444-45; Larez, 16 F.3d at 1521-23; Townsend v. Holman Consulting Corp., 881 F.2d 788, 793-96 (9th Cir. 1989), vacated on reh'g by 914 F.2d 1136 (9th Cir. 1990) (en banc); Jensen, 873 F.2d at 1329-30; Ault, 860 F.2d at 883-84; Smith Int'l, Inc. v. Texas Commerce Bank, 844 F.2d 1193, 1199-1202 (5th Cir. 1988); Hudson, 836 F.2d at 1156-62; Glaser v. Cincinnati Milacron, 808 F.2d 285, 288-91 (3d Cir. 1986); In re Yagman, 796 F.2d 1165, 1183-87 (9th Cir. 1986); Kamen v. AT&T, 791 F.2d 1006, 1007 (2d Cir. 1986); Zaldivar v. City of L.A., 780 F.2d 823, 830-35 (9th Cir. 1986); Eastway Constr. Corp. v. City of N.Y., 762 F.2d 243, 253-54 (2d Cir. 1985); Goldman v. Beiden, 754 F.2d 1059, 1072 (2d Cir. 1985).
112. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403-04 (1990) (settling circuit split regarding appropriate standard of review of Rule 11 sanctions in favor of abuse of discretion standard).
113. See, e.g., Garr v. U.S. Healthcare Inc., 22 F.3d 1274, 1281-83 (3d Cir. 1994); Alia v. Michigan Supreme Court, 906 F.2d 1100, 1102-03, 1108 (6th Cir. 1990); International Shipping Co. v. Hydra Offshore Inc., 875 F.2d 388, 392-95 (2d Cir.), cert. denied, 493 U.S. 1003 (1989); Smith Int'l, 844 F.2d at 1196-1202; Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1085-86 (7th Cir. 1987), cert. dismissed, 485 U.S. 901 (1988).
114. See, e.g., Warren, 58 F.3d at 444; Amaco Enters, v. Smolen, Nos. 93-16746 et al., 1995 U.S. App. LEXIS 20486, at *12 (9th Cir. July 17, 1995); Locomotor USA Inc. v. Korus Co., Nos. 93-56032, -56622, 1995 U.S. App. LEXIS 401, at *23-*24 (9th Cir. Jan. 6, 1995); In re Edmonds, 924 F.2d 176, 181-82 (10th Cir. 1991); Operating Eng'rs Pension Trust v. A-C Co., 859 F.2d 1336, 1343-44 (9th Cir. 1988); Trident Ctr. v. Connecticut Gen. Life Ins. Co., 847 F.2d 564, 570 (9th Cir. 1988); Stevens v. Lawyers Mut. Liab. Ins. Co., 789 F.2d 1056, 1060 (4th Cir. 1986) (agreeing with sanctioned argument, though controversy moot).
115. Cf. Dilley v. United States, No. 93-4225, 1995 U.S. App. LEXIS 4480, at *5 (10th Cir. Mar. 6, 1995) (noting court was "tempted to affirm the award of sanctions" against frequent filer who continues to file losing actions against FAA, but remanding for reconsideration because he had "partially prevail[ed] on an appeal in the Ninth Circuit" and because Rule 11 sanctions now discretionary after 1993 amendments). Sanford Levinson reports that his favorite law-become-frivolity is, a Texas case in which an oil company argued that a statutory requirement of a bid for an oil lease was that the royalty offer be written as a percentage. The company therefore argued that its competitor, who had offered a royalty of .82165 had not complied with the statute, which purportedly required an offer of 82.165 percent. The Fifth Circuit pronounced this argument "quite incredible," and its opinion quoted from some children's arithmetic books on how to convert decimals into percentages and vice versa. But the most notable point is that the district judge below had apparently accepted this argument, and the Fifth Circuit had to reverse him. Sanford Levinson, Frivolous Cases: Do Lawyers Really Know Anything at All?, 24 Osgoode Hall L.J. 353, 370-71 (1986) (footnotes omitted) (citing Oil & Gas Futures, Inc. v. Andrus, 610 F.2d 287, 288 (5th Cir. 1980)).
116. See Levinson, supra note 48, at 370 (observing "'[f]rivolousness, like madness and obscenity, is more readily recognized than cogently defined'" (quoting Robert Hermann, Frivolous Criminal Appeals, 47 N.Y.U. L. Rev. 701, 705 (1972))); Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot? Looking for a Middle Ground on Rule 11 Sanctions, 41 Hastings L.J. 383, 384 (1990) (noting "considerable conflict still exists"); William W Schwarzer, Commentaries: Rule 11 Revisited, 101 Harv. L. Rev. 1013, 1015 (1988) ("In interpreting and applying Rule 11, the courts have become a veritable Tower of Babel."); Schwarzer, supra note 41, at 10 ("Though they had abundant opportunity, the courts never succeeded in articulating universally accepted and workable standards of sanctionable conduct and sanctionable content."). Similar comments appear in Thomas v. Capital Security Services Inc., 836 F.2d 866, 869-70 (5th Cir. 1988) (en banc) (establishing appropriate procedures and standards for imposition of sanctions under Rule 11 and noting Rule 11 "has generated extensive debate and controversy among legal scholars, jurists, and practitioners").
117. See Levinson, supra note 48, at 370 (observing "'[f]rivolousness, like madness and obscenity, is more readily recognized than cogently defined'" (quoting Robert Hermann, Frivolous Criminal Appeals, 47 N.Y.U. L. Rev. 701, 705 (1972))); Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot? Looking for a Middle Ground on Rule 11 Sanctions, 41 Hastings L.J. 383, 384 (1990) (noting "considerable conflict still exists"); William W Schwarzer, Commentaries: Rule 11 Revisited, 101 Harv. L. Rev. 1013, 1015 (1988) ("In interpreting and applying Rule 11, the courts have become a veritable Tower of Babel."); Schwarzer, supra note 41, at 10 ("Though they had abundant opportunity, the courts never succeeded in articulating universally accepted and workable standards of sanctionable conduct and sanctionable content."). Similar comments appear in Thomas v. Capital Security Services Inc., 836 F.2d 866, 869-70 (5th Cir. 1988) (en banc) (establishing appropriate procedures and standards for imposition of sanctions under Rule 11 and noting Rule 11 "has generated extensive debate and controversy among legal scholars, jurists, and practitioners").
118. See Levinson, supra note 48, at 370 (observing "'[f]rivolousness, like madness and obscenity, is more readily recognized than cogently defined'" (quoting Robert Hermann, Frivolous Criminal Appeals, 47 N.Y.U. L. Rev. 701, 705 (1972))); Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot? Looking for a Middle Ground on Rule 11 Sanctions, 41 Hastings L.J. 383, 384 (1990) (noting "considerable conflict still exists"); William W Schwarzer, Commentaries: Rule 11 Revisited, 101 Harv. L. Rev. 1013, 1015 (1988) ("In interpreting and applying Rule 11, the courts have become a veritable Tower of Babel."); Schwarzer, supra note 41, at 10 ("Though they had abundant opportunity, the courts never succeeded in articulating universally accepted and workable standards of sanctionable conduct and sanctionable content."). Similar comments appear in Thomas v. Capital Security Services Inc., 836 F.2d 866, 869-70 (5th Cir. 1988) (en banc) (establishing appropriate procedures and standards for imposition of sanctions under Rule 11 and noting Rule 11 "has generated extensive debate and controversy among legal scholars, jurists, and practitioners").
119. See Levinson, supra note 48, at 370 (observing "'[f]rivolousness, like madness and obscenity, is more readily recognized than cogently defined'" (quoting Robert Hermann, Frivolous Criminal Appeals, 47 N.Y.U. L. Rev. 701, 705 (1972))); Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot? Looking for a Middle Ground on Rule 11 Sanctions, 41 Hastings L.J. 383, 384 (1990) (noting "considerable conflict still exists"); William W Schwarzer, Commentaries: Rule 11 Revisited, 101 Harv. L. Rev. 1013, 1015 (1988) ("In interpreting and applying Rule 11, the courts have become a veritable Tower of Babel."); Schwarzer, supra note 41, at 10 ("Though they had abundant opportunity, the courts never succeeded in articulating universally accepted and workable standards of sanctionable conduct and sanctionable content."). Similar comments appear in Thomas v. Capital Security Services Inc., 836 F.2d 866, 869-70 (5th Cir. 1988) (en banc) (establishing appropriate procedures and standards for imposition of sanctions under Rule 11 and noting Rule 11 "has generated extensive debate and controversy among legal scholars, jurists, and practitioners").
120. See Levinson, supra note 48, at 370 (observing "'[f]rivolousness, like madness and obscenity, is more readily recognized than cogently defined'" (quoting Robert Hermann, Frivolous Criminal Appeals, 47 N.Y.U. L. Rev. 701, 705 (1972))); Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot? Looking for a Middle Ground on Rule 11 Sanctions, 41 Hastings L.J. 383, 384 (1990) (noting "considerable conflict still exists"); William W Schwarzer, Commentaries: Rule 11 Revisited, 101 Harv. L. Rev. 1013, 1015 (1988) ("In interpreting and applying Rule 11, the courts have become a veritable Tower of Babel."); Schwarzer, supra note 41, at 10 ("Though they had abundant opportunity, the courts never succeeded in articulating universally accepted and workable standards of sanctionable conduct and sanctionable content."). Similar comments appear in Thomas v. Capital Security Services Inc., 836 F.2d 866, 869-70 (5th Cir. 1988) (en banc) (establishing appropriate procedures and standards for imposition of sanctions under Rule 11 and noting Rule 11 "has generated extensive debate and controversy among legal scholars, jurists, and practitioners").
121. Levinson, supra note 48, at 371 (footnote omitted).
122. Judge William W Schwarzer advocated just such an interpretation of Rule 11 in his article, Rule 11 Revisited, supra note 49. He recognized that courts were not applying the merits-based inquiry in a uniform way and suggested that they move to a standard emphasizing "prevailing professional practice": Shifting the focus of rule 11 enforcement from merits to process will not solve all problems. Redirecting it, however, from predicting what some future court might say about a claim or defense to scrutinizing what a lawyer actually did, should materially reduce subjectivity and inconsistency. Lawyers and judges may not invariably agree on what constitutes a reasonable inquiry under the circumstances, but it is reasonable to expect a greater consensus on that question than on whether a claim or defense is frivolous. Id. at 1024-25; see also Nelken, supra note 49, at 408 (concluding that Rule 11 should be amended to clarify its focus on prefiling inquiry); David J. Webster, Rule 11: Has the Objective Standard Transgressed the Adversary System?, 38 Case W. Res. L. Rev. 279, 317 (1987) (proposing that Rule 11 be reamended so attorney's factual and legal inquiry continue to be judged objectively but that attorney's legal conclusion be judged against subjective good faith standard); Note, Plausible Pleadings: Developing Standards for Rule 11 Sanctions, 100 Harv. L. Rev. 630, 632 (1987) (suggesting that current interpretations of amended Rule's requirements conflict with liberal pleading regime of federal rules, and arguing that courts should read Rule 11 narrowly, consistent with its text and purposes and with realist jurisprudential roots of federal system).
123. Judge William W Schwarzer advocated just such an interpretation of Rule 11 in his article, Rule 11 Revisited, supra note 49. He recognized that courts were not applying the merits-based inquiry in a uniform way and suggested that they move to a standard emphasizing "prevailing professional practice": Shifting the focus of rule 11 enforcement from merits to process will not solve all problems. Redirecting it, however, from predicting what some future court might say about a claim or defense to scrutinizing what a lawyer actually did, should materially reduce subjectivity and inconsistency. Lawyers and judges may not invariably agree on what constitutes a reasonable inquiry under the circumstances, but it is reasonable to expect a greater consensus on that question than on whether a claim or defense is frivolous. Id. at 1024-25; see also Nelken, supra note 49, at 408 (concluding that Rule 11 should be amended to clarify its focus on prefiling inquiry); David J. Webster, Rule 11: Has the Objective Standard Transgressed the Adversary System?, 38 Case W. Res. L. Rev. 279, 317 (1987) (proposing that Rule 11 be reamended so attorney's factual and legal inquiry continue to be judged objectively but that attorney's legal conclusion be judged against subjective good faith standard); Note, Plausible Pleadings: Developing Standards for Rule 11 Sanctions, 100 Harv. L. Rev. 630, 632 (1987) (suggesting that current interpretations of amended Rule's requirements conflict with liberal pleading regime of federal rules, and arguing that courts should read Rule 11 narrowly, consistent with its text and purposes and with realist jurisprudential roots of federal system).
124. Judge William W Schwarzer advocated just such an interpretation of Rule 11 in his article, Rule 11 Revisited, supra note 49. He recognized that courts were not applying the merits-based inquiry in a uniform way and suggested that they move to a standard emphasizing "prevailing professional practice": Shifting the focus of rule 11 enforcement from merits to process will not solve all problems. Redirecting it, however, from predicting what some future court might say about a claim or defense to scrutinizing what a lawyer actually did, should materially reduce subjectivity and inconsistency. Lawyers and judges may not invariably agree on what constitutes a reasonable inquiry under the circumstances, but it is reasonable to expect a greater consensus on that question than on whether a claim or defense is frivolous. Id. at 1024-25; see also Nelken, supra note 49, at 408 (concluding that Rule 11 should be amended to clarify its focus on prefiling inquiry); David J. Webster, Rule 11: Has the Objective Standard Transgressed the Adversary System?, 38 Case W. Res. L. Rev. 279, 317 (1987) (proposing that Rule 11 be reamended so attorney's factual and legal inquiry continue to be judged objectively but that attorney's legal conclusion be judged against subjective good faith standard); Note, Plausible Pleadings: Developing Standards for Rule 11 Sanctions, 100 Harv. L. Rev. 630, 632 (1987) (suggesting that current interpretations of amended Rule's requirements conflict with liberal pleading regime of federal rules, and arguing that courts should read Rule 11 narrowly, consistent with its text and purposes and with realist jurisprudential roots of federal system).
125. Judge William W Schwarzer advocated just such an interpretation of Rule 11 in his article, Rule 11 Revisited, supra note 49. He recognized that courts were not applying the merits-based inquiry in a uniform way and suggested that they move to a standard emphasizing "prevailing professional practice": Shifting the focus of rule 11 enforcement from merits to process will not solve all problems. Redirecting it, however, from predicting what some future court might say about a claim or defense to scrutinizing what a lawyer actually did, should materially reduce subjectivity and inconsistency. Lawyers and judges may not invariably agree on what constitutes a reasonable inquiry under the circumstances, but it is reasonable to expect a greater consensus on that question than on whether a claim or defense is frivolous. Id. at 1024-25; see also Nelken, supra note 49, at 408 (concluding that Rule 11 should be amended to clarify its focus on prefiling inquiry); David J. Webster, Rule 11: Has the Objective Standard Transgressed the Adversary System?, 38 Case W. Res. L. Rev. 279, 317 (1987) (proposing that Rule 11 be reamended so attorney's factual and legal inquiry continue to be judged objectively but that attorney's legal conclusion be judged against subjective good faith standard); Note, Plausible Pleadings: Developing Standards for Rule 11 Sanctions, 100 Harv. L. Rev. 630, 632 (1987) (suggesting that current interpretations of amended Rule's requirements conflict with liberal pleading regime of federal rules, and arguing that courts should read Rule 11 narrowly, consistent with its text and purposes and with realist jurisprudential roots of federal system).
126. See Schwarzer, supra note 41, at 10 (commenting that underlying tension between conduct and content not yet resolved).
127. See, for example, from the Second Circuit, King Warehouse Distrib. v. Walker Mfg. Co., 61 F.3d 123, 131 (2d Cir. 1995) (requiring judge to ask whether it is "'patently clear that a claim has absolutely no chance of success'" (quoting Rodick v. City of Schenectady, 1 F.3d 1341, 1350 (2d Cir. 1993))). Ninth Circuit examples include: Roundtree v. United States, 40 F.3d 1036, 1040 (9th Cir. 1994) (affirming sanctions against attorney for suing FAA on argument derived from law review article when attorney had repeatedly sued (to no avail) on same theory in different jurisdictions with different plaintiffs in attempt to change law); Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1361 (9th Cir. 1990) (en banc) (stating filing is frivolous if both baseless and made without reasonable inquiry). Cases from the Eleventh Circuit include Jones v. International Riding Helmets, Ltd., 49 F.3d 692, 695 (11th Cir. 1995) (stating court must determine whether claim is objectively frivolous and, only if so, whether lawyer made reasonable inquiry); Souran v. Travelers Ins. Co., 982 F.2d 1497, 1506 (11th Cir. 1993) (using "'no reasonable chance of success'" test); McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1563 (11th Cir. 1992) (requiring court, before imposing sanctions, to determine whether party's claims are objectively frivolous and, if they are, to determine whether signer of pleadings would have been aware had she or he made reasonable inquiry).
128. See, e.g., Garr v. U.S. Healthcare Inc., 22 F.3d 1274, 1279 (3d Cir. 1994) ("'A shot in the dark is a sanctionable event, even if it somehow hits the mark.'" (quoting Vista Mfg., Inc. v. Trac-4 Inc., 131 F.R.D. 134, 138 (N.D. Ind. 1990))); White v. General Motors Corp., 908 F.2d 675, 680, 682 (10th Cir. 1990) ("[P]laintiffs may not shield their own incompetence by arguing that, while they failed to make a colorable argument, a competent attorney would have done so."), cert. denied, 498 U.S. 1069 (1991); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 938 (7th Cir. 1989) (en banc) ("To say that Joyce & Kubasiak did not construct a plausible legal argument is not to say that the firm couldn't have . . . ."); Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 752 (7th Cir. 1988) ("We must determine only whether the arguments actually advanced by counsel were reasonable and not whether reasonable arguments could have been advanced in support of counsel's position."); Cabell v. Petty, 810 F.2d 463, 466, 467-68 (4th Cir. 1987) (sanctioning plaintiff for pursuing claim in face of immunity defense without addressing defense, even though, as dissent points out, sound arguments existed for countering immunity). Most circuits have not been presented with the hard case of a meritorious argument poorly made. However, the statements of Rule 11 doctrine in jurisdictions where this is the case tend to emphasize reasonable inquiry more than substantive frivolousness. See, e.g., Keaton v. Hubbard, No. 94-5076, 1995 U.S. App. LEXIS 9983, at *6-*7 (6th Cir. Apr. 27, 1995) (affirming sanctions imposed because counsel had done "no research" on dispositive res judicata issue); O'Ferral v. Trebol Motors Corp., 45 F.3d 561, 563-64 (1st Cir. 1995) (affirming sanctions against plaintiff where court found lack of reasonable inquiry); Bensalem Township v. International Surplus Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1994) (holding Rule 11 "imposes an affirmative duty on the parties to conduct a reasonable inquiry into the applicable law and facts prior to filing. . . . An inquiry is considered reasonable under the circumstances if it provides the party with 'an objective knowledge or belief at the time of the filing of a challenged paper that the claim was well-grounded in law and fact'" (citation omitted)); FDIC v. Calhoun, 34 F.3d 1291, 1296-97 (5th Cir. 1994) (stressing reasonable inquiry); Silva v. Witschen, 19 F.3d 725, 729 (1st Cir. 1994) ("Rule 11 mandated sanctions for interposing a filing . . . under circumstances in which a competent attorney, on objectively reasonable inquiry, could not have believed that the filing was . . . warranted either by existing law or by a good-faith argument for the extension, modification or reversal of existing law."); LaSalle Nat'l Bank v. County of Dupage, 10 F.3d 1333, 1337-39 (7th Cir. 1993) (examining reasonableness under circumstances); Brubaker v. Richmond, 943 F.2d 1363, 1376 (4th Cir. 1991) (holding that sanctions were unwarranted where plaintiff had conducted reasonable inquiry and was not objectively unreasonable in filing claim); In re Edmonds, 924 F.2d 176, 181 (10th Cir. 1991) (stressing reasonable inquiry); In re Kunstler, 914 F.2d 505, 517 (4th Cir. 1990) (noting Rule 11 standard asks whether "a reasonable attorney in like circumstances would believe his action to be factually and legally justified"), cert. denied, 499 U.S. 969 (1991); Century Prod. v. Sutter, 837 F.2d 247, 253 (6th Cir. 1988) (examining whether conduct was "reasonable under the circumstances"); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 875-76 (5th Cir. 1988) (en banc) (stressing reasonable inquiry).
129. 791 F.2d 1006 (2d Cir. 1986).
130. See id. at 1009.
131. See id. at 1010.
132. See id. at 1012-13.
133. Id. at 1012 (citation omitted).
134. See id. at 1014; see also Eastway Constr. Corp. v. City of N.Y., 762 F.2d 243 (2d Cir. 1985). Eastway established the test still used in the Second Circuit: Rule 11 is violated when "it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify or reverse the law as it stands." Id. at 254. Consonant with this merits-based approach, Eastway prescribed a de novo standard of review for questions of legal frivolousness, see id. at 252, which was later overruled by the Supreme Court in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403-04 (1990). See United States v. Carley, 783 F.2d 341, 344 (2d Cir.) (retaining Eastway test for substantive frivolousness), cert. denied, 476 U.S. 1142 (1986). Though the Second Circuit still retains a "no chance of success" test for frivolousness, K.M.B. Warehouse Distribs. v. Walker Mfg. Co., 61 F.3d 123, 131 (2d Cir. 1995) (quoting Rodick v. City of Schenectady, 1 F.3d 1341, 1350 (2d Cir. 1993)), a few of its opinions have begun to concentrate more on the presentation or process of attorneys' arguments. See, e.g., International Shipping Co. v. Hydra Offshore Inc., 875 F.2d 388, 390 (2d Cir.) (upholding sanctions in part because plaintiff advanced tenuous legal argument in support of position only during sanctions proceedings, not during oral argument on motion to dismiss), cert. denied, 493 U.S. 1003 (1989).
135. See Indianapolis Colts v. Mayor of Baltimore, 775 F.2d 177, 182 (7th Cir. 1985) ("[T]he fact that judges who have ruled on the merits of [the contested] pleading disagree provides significant evidence that the pleading was
136. 823 F.2d 1073 (7th Cir. 1987), cert. dismissed, 485 U.S. 901 (1988).
137. Id. at 1080.
138. Id. at 1081-82.
139. Id. at 1085 (Cudahy, J., dissenting). For other cases showing this transition from merits-based to practice-based analysis, see Frantz v. United States Powerlifting Fed'n, 836 F.2d 1063, 1067 (7th Cir. 1987) (holding that sanctions were warranted where complaint was deemed frivolous and had been filed without prior reasonable inquiry into law); Sparks v. NLRB, 835 F.2d 705, 707 (7th Cir. 1987) (noting both that case was not colorable and that attorney, "a specialist in labor law," should have known that). Judge Cudahy's concern is borne out by Brooks v. Allison Division of General Motors Corp., 874 F.2d 489, 490 (7th Cir. 1989) (holding pro se appeal was frivolous, but denying sanctions because defendant had failed to mitigate damages by filing full-fledged brief on merits of case). The court noted: Brooks, still pro se, appealed. His appeal brief neither cites any legal authorities nor specifies any error in the district court's decision. The argument section of the brief is a one-page narrative of the events leading up to Brooks's discharge by General Motors. There is no argument. So naked a submission is frivolous per se. Id.
140. 880 F.2d 928 (7th Cir. 1989) (en banc). Judges Flaum, Bauer, Wood, and Cudahy concurred separately, preferring a de novo standard of review. Id. at 940 (Flaum, J., concurring).
141. See id. at 933.
142. Id. at 932.
143. See id. at 933.
144. Id. at 937.
145. Id. at 938. The practice-based approach of Mars Steel has been followed by LaSalle Nat'l Bank v. County of Dupage, 10 F.3d 1333, 1339 (7th Cir. 1993) (noting that "sanctions are not appropriate when the plaintiffs' pretrial inquiries into the factual and legal bases of the complaint are sufficient"); Rush v. McDonald's Corp., 760 F. Supp. 1349, 1365-66 (S.D. Ind. 1991) (using "reasonable inquiry" test), aff'd, 966 F.2d 1104 (7th Cir. 1992); see also supra note 54 and accompanying text.
146. 496 U.S. 384 (1990).
147. Id. at 401-02.
148. Id. at 404 (quoting Pierce v. Underwood, 487 U.S. 552, 561 (1988)). At least one commentator has argued that the Court was "technically incorrect" to allow abuse of discretion review for questions of law. Vairo, supra note 41, at 73. However, she does not address the difference between practice- and merits-based approaches to sanctioning attorneys.
149. Id. at 404 (quoting Pierce v. Underwood, 487 U.S. 552, 561 (1988)). At least one commentator has argued that the Court was "technically incorrect" to allow abuse of discretion review for questions of law. Vairo, supra note 41, at 73. However, she does not address the difference between practice- and merits-based approaches to sanctioning attorneys.
150. Garr v. U.S. Healthcare Inc., 22 F.3d 1274, 1279 (3d Cir. 1994) (quoting Vista Mfg., Inc. v. Trac-4 Inc., 131 F.R.D. 134, 138 (N.D. Ind. 1990)). Judge Roth dissented in Garr, on the ground that the merits of the complaint should rescue a defective prefiling investigation. See id. at 1281 (Roth, J., dissenting).
151. See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (en banc) ("Sanctuary as a result of reasonable investigation ensures that counsel may take novel, innovative positions - that Rule 11 does not jeopardize aggressive advocacy or legal evolution."); Marshall et al., supra note 42, at 961-62 (reporting 19.3% of attorneys surveyed reported that they declined to present what they believed were meritorious claims because of Rule 11); Melissa L. Nelken, Sanctions Under Amended Rule 11 - Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313, 1339 (1986) (noting Rule 11 Advisory Committee's concern about potential chilling effects of sanctions); Webster, supra note 51, at 284-85 (stating that 1983 amendment provoked fear of stifling growth and innovation in law); Paul Kaufman, Note, A Prospective Cap on Rule 11 Sanctions, 56 Brook. L. Rev. 1275, 1277, 1280-81 (1991) (noting that Rule 11 is often criticized for its chilling effects, despite efforts by drafters to avoid hindering enthusiasm or creativity). The 1993 amendments to Rule 11, which provide litigants a chance to withdraw arguments before suffering sanctions, were a response to concern that Rule 11 was "chilling" legal evolution. See Schwarzer, supra note 41, at 12-13 (noting that purpose of 1993 amendments was to remedy problems stemming from harsher 1983 amendments); Vairo, supra note 41, at 41 (arguing that 1993 amendments have alleviated some problems of 1983 Rule 11, which forced potential litigants to forgo litigation).
152. See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (en banc) ("Sanctuary as a result of reasonable investigation ensures that counsel may take novel, innovative positions - that Rule 11 does not jeopardize aggressive advocacy or legal evolution."); Marshall et al., supra note 42, at 961-62 (reporting 19.3% of attorneys surveyed reported that they declined to present what they believed were meritorious claims because of Rule 11); Melissa L. Nelken, Sanctions Under Amended Rule 11 - Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313, 1339 (1986) (noting Rule 11 Advisory Committee's concern about potential chilling effects of sanctions); Webster, supra note 51, at 284-85 (stating that 1983 amendment provoked fear of stifling growth and innovation in law); Paul Kaufman, Note, A Prospective Cap on Rule 11 Sanctions, 56 Brook. L. Rev. 1275, 1277, 1280-81 (1991) (noting that Rule 11 is often criticized for its chilling effects, despite efforts by drafters to avoid hindering enthusiasm or creativity). The 1993 amendments to Rule 11, which provide litigants a chance to withdraw arguments before suffering sanctions, were a response to concern that Rule 11 was "chilling" legal evolution. See Schwarzer, supra note 41, at 12-13 (noting that purpose of 1993 amendments was to remedy problems stemming from harsher 1983 amendments); Vairo, supra note 41, at 41 (arguing that 1993 amendments have alleviated some problems of 1983 Rule 11, which forced potential litigants to forgo litigation).
153. See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (en banc) ("Sanctuary as a result of reasonable investigation ensures that counsel may take novel, innovative positions - that Rule 11 does not jeopardize aggressive advocacy or legal evolution."); Marshall et al., supra note 42, at 961-62 (reporting 19.3% of attorneys surveyed reported that they declined to present what they believed were meritorious claims because of Rule 11); Melissa L. Nelken, Sanctions Under Amended Rule 11 - Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313, 1339 (1986) (noting Rule 11 Advisory Committee's concern about potential chilling effects of sanctions); Webster, supra note 51, at 284-85 (stating that 1983 amendment provoked fear of stifling growth and innovation in law); Paul Kaufman, Note, A Prospective Cap on Rule 11 Sanctions, 56 Brook. L. Rev. 1275, 1277, 1280-81 (1991) (noting that Rule 11 is often criticized for its chilling effects, despite efforts by drafters to avoid hindering enthusiasm or creativity). The 1993 amendments to Rule 11, which provide litigants a chance to withdraw arguments before suffering sanctions, were a response to concern that Rule 11 was "chilling" legal evolution. See Schwarzer, supra note 41, at 12-13 (noting that purpose of 1993 amendments was to remedy problems stemming from harsher 1983 amendments); Vairo, supra note 41, at 41 (arguing that 1993 amendments have alleviated some problems of 1983 Rule 11, which forced potential litigants to forgo litigation).
154. See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (en banc) ("Sanctuary as a result of reasonable investigation ensures that counsel may take novel, innovative positions - that Rule 11 does not jeopardize aggressive advocacy or legal evolution."); Marshall et al., supra note 42, at 961-62 (reporting 19.3% of attorneys surveyed reported that they declined to present what they believed were meritorious claims because of Rule 11); Melissa L. Nelken, Sanctions Under Amended Rule 11 - Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313, 1339 (1986) (noting Rule 11 Advisory Committee's concern about potential chilling effects of sanctions); Webster, supra note 51, at 284-85 (stating that 1983 amendment provoked fear of stifling growth and innovation in law); Paul Kaufman, Note, A Prospective Cap on Rule 11 Sanctions, 56 Brook. L. Rev. 1275, 1277, 1280-81 (1991) (noting that Rule 11 is often criticized for its chilling effects, despite efforts by drafters to avoid hindering enthusiasm or creativity). The 1993 amendments to Rule 11, which provide litigants a chance to withdraw arguments before suffering sanctions, were a response to concern that Rule 11 was "chilling" legal evolution. See Schwarzer, supra note 41, at 12-13 (noting that purpose of 1993 amendments was to remedy problems stemming from harsher 1983 amendments); Vairo, supra note 41, at 41 (arguing that 1993 amendments have alleviated some problems of 1983 Rule 11, which forced potential litigants to forgo litigation).
155. See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (en banc) ("Sanctuary as a result of reasonable investigation ensures that counsel may take novel, innovative positions - that Rule 11 does not jeopardize aggressive advocacy or legal evolution."); Marshall et al., supra note 42, at 961-62 (reporting 19.3% of attorneys surveyed reported that they declined to present what they believed were meritorious claims because of Rule 11); Melissa L. Nelken, Sanctions Under Amended Rule 11 - Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313, 1339 (1986) (noting Rule 11 Advisory Committee's concern about potential chilling effects of sanctions); Webster, supra note 51, at 284-85 (stating that 1983 amendment provoked fear of stifling growth and innovation in law); Paul Kaufman, Note, A Prospective Cap on Rule 11 Sanctions, 56 Brook. L. Rev. 1275, 1277, 1280-81 (1991) (noting that Rule 11 is often criticized for its chilling effects, despite efforts by drafters to avoid hindering enthusiasm or creativity). The 1993 amendments to Rule 11, which provide litigants a chance to withdraw arguments before suffering sanctions, were a response to concern that Rule 11 was "chilling" legal evolution. See Schwarzer, supra note 41, at 12-13 (noting that purpose of 1993 amendments was to remedy problems stemming from harsher 1983 amendments); Vairo, supra note 41, at 41 (arguing that 1993 amendments have alleviated some problems of 1983 Rule 11, which forced potential litigants to forgo litigation).
156. See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (en banc) ("Sanctuary as a result of reasonable investigation ensures that counsel may take novel, innovative positions - that Rule 11 does not jeopardize aggressive advocacy or legal evolution."); Marshall et al., supra note 42, at 961-62 (reporting 19.3% of attorneys surveyed reported that they declined to present what they believed were meritorious claims because of Rule 11); Melissa L. Nelken, Sanctions Under Amended Rule 11 - Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313, 1339 (1986) (noting Rule 11 Advisory Committee's concern about potential chilling effects of sanctions); Webster, supra note 51, at 284-85 (stating that 1983 amendment provoked fear of stifling growth and innovation in law); Paul Kaufman, Note, A Prospective Cap on Rule 11 Sanctions, 56 Brook. L. Rev. 1275, 1277, 1280-81 (1991) (noting that Rule 11 is often criticized for its chilling effects, despite efforts by drafters to avoid hindering enthusiasm or creativity). The 1993 amendments to Rule 11, which provide litigants a chance to withdraw arguments before suffering sanctions, were a response to concern that Rule 11 was "chilling" legal evolution. See Schwarzer, supra note 41, at 12-13 (noting that purpose of 1993 amendments was to remedy problems stemming from harsher 1983 amendments); Vairo, supra note 41, at 41 (arguing that 1993 amendments have alleviated some problems of 1983 Rule 11, which forced potential litigants to forgo litigation).
157. See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (en banc) ("Sanctuary as a result of reasonable investigation ensures that counsel may take novel, innovative positions - that Rule 11 does not jeopardize aggressive advocacy or legal evolution."); Marshall et al., supra note 42, at 961-62 (reporting 19.3% of attorneys surveyed reported that they declined to present what they believed were meritorious claims because of Rule 11); Melissa L. Nelken, Sanctions Under Amended Rule 11 - Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313, 1339 (1986) (noting Rule 11 Advisory Committee's concern about potential chilling effects of sanctions); Webster, supra note 51, at 284-85 (stating that 1983 amendment provoked fear of stifling growth and innovation in law); Paul Kaufman, Note, A Prospective Cap on Rule 11 Sanctions, 56 Brook. L. Rev. 1275, 1277, 1280-81 (1991) (noting that Rule 11 is often criticized for its chilling effects, despite efforts by drafters to avoid hindering enthusiasm or creativity). The 1993 amendments to Rule 11, which provide litigants a chance to withdraw arguments before suffering sanctions, were a response to concern that Rule 11 was "chilling" legal evolution. See Schwarzer, supra note 41, at 12-13 (noting that purpose of 1993 amendments was to remedy problems stemming from harsher 1983 amendments); Vairo, supra note 41, at 41 (arguing that 1993 amendments have alleviated some problems of 1983 Rule 11, which forced potential litigants to forgo litigation).
158. 347 U.S. 483 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896)). The fluidity of legal interpretation is underscored by the fact that one respected commentator has argued that Brown was consistent with Plessy in principle. See Andrew Kull, The Color-Blind Constitution 151-63 (1992).
159. 347 U.S. 483 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896)). The fluidity of legal interpretation is underscored by the fact that one respected commentator has argued that Brown was consistent with Plessy in principle. See Andrew Kull, The Color-Blind Constitution 151-63 (1992).
160. 247 U.S. 251 (1918).
161. Edward H. Levi, An Introduction to Legal Reasoning 86 (1949) (quoting Brief for Complainant, Hammer (No. 704)).
162. Id. For other examples of the frivolous turned foundational, see Jules Lobel, Losers, Fools & Prophets: Justice as Struggle, 80 Cornell L. Rev. 1331, 1331-32 (1995) (providing examples of early hopeless test cases that have subsequently become law); Webster, supra note 51, at 306 n.119 (questioning whether various landmark decisions would have been brought in Rule 11 climate).
163. Id. For other examples of the frivolous turned foundational, see Jules Lobel, Losers, Fools & Prophets: Justice as Struggle, 80 Cornell L. Rev. 1331, 1331-32 (1995) (providing examples of early hopeless test cases that have subsequently become law); Webster, supra note 51, at 306 n.119 (questioning whether various landmark decisions would have been brought in Rule 11 climate).
164. See generally Philippe Nonet, In the Matter of Green v. Recht, 75 Cal. L. Rev. 363, 367-69 (1987).
165. Lobel, supra note 80, at 1347.
166. Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (en banc) (citations omitted); see also, Karonis Enters. Inc. v. Commercial Union Ins. Co., No. 94 C 1092, 1994 WL 722025, at *5-*9 (N.D. Ill. Dec. 29, 1994) (unpublished opinion) (noting that plaintiff's attorney misstated allegations in opponent's complaint, misstated relevant law about federal jurisdiction, and cited irrelevant cases and statutes).
167. Nos. 92-7093 et al., 1993 U.S. App. LEXIS 33658 (D.C. Cir. Dec. 14, 1993).
168. See id. at *3.
169. Id. at *8.
170. Id. at *11-*12 (Henderson, J., dissenting). Compare International Shipping Co. v. Hydra Offshore, Inc., 875 F.2d 388, 391-92 (2d Cir. 1989) (sanctioning plaintiff for failing to address controlling authority), cert. denied, 493 U.S. 1003 (1989) with id. at 393 (Pratt, J., dissenting) (disagreeing with majority over whether statement in earlier case was holding or dicta). See also Fed. R. Civ. P. 11 advisory committee's note ("Although arguments for a change of law are not required to be specifically so identified, a contention that is so identified should be viewed with greater tolerance under the rule."); Smith Int'l, Inc. v. Texas Commerce Bank, 844 F.2d 1193, 1199-1202 (5th Cir. 1988) (reversing district court's imposition of sanctions on ground that case plaintiffs relied upon was not so clearly distinguishable as district court believed it to be); Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538-39 (9th Cir. 1986) (reversing sanctions imposed for mischaracterizing precedent while noting difficulty of determining whether argument is in ac-cord with controlling law or is argument for its extension).
171. The Sixth Circuit has applied the same standard to pro se litigants that it applies to members of the bar. See Spurlock v. Demby, No. 92-3842, 1995 U.S. App. LEXIS 4321, at *6 (6th Cir. Mar. 2, 1995). Other courts have given more leeway to pro se litigants. See Banco de Ponce v. Buxbaum, No. 90 Civ. 6344, 1995 WL 92324, at *7 (S.D.N.Y, Mar. 7, 1995) (finding pro se litigant's Rule 11 "violations did not consist of a mistake of law excusable in a lay person"), aff'd, No. 95-7469, 1995 WL 762983 (2d Cir. Dec. 27, 1995); Anderson v. Butler, 886 F.2d 111, 114 (5th Cir. 1989) (noting pro se habeas litigants not usually sanctioned); Pouncy v. Murray, No. 93-7267, 1995 U.S. App. LEXIS 395, at *2 (4th Cir. Jan. 10, 1995) (following Anderson, 886 F.2d at 114); Vukadinovich v. McCarthy, 901 F.2d 1439, 1445 (7th Cir. 1990) (stating pro se status is mitigating factor), cert. denied, 498 U.S. 1050 (1991); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 875-76 (5th Cir. 1988) (en banc) (holding pro se status is one factor to be considered in determining reasonableness of profiling inquiry).
172. As the Fourth Circuit noted: The number of hours allegedly spent by counsel in prefiling investigation does not dissuade us from affirming the district court's findings of Rule 11 violations. Given the adequate time to prepare and hours allegedly spent in preparation of the complaint, appellants have presented no excuse for the many clear factual errors in this pleading. In re Kunstler, 914 F.2d 505, 516 (4th Cir. 1990), cert. denied, 499 U.S. 969 (1991). On the other hand, some courts have looked to time spent to determine the reasonableness of the profiling inquiry. See Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 442, 448 (5th Cir. 1992) (reversing sanctions and noting 200 hours of legal and factual investigation); Jensen Elec. v. Moore, Caldwell, Rowland & Dodd, 873 F.2d 1327, 1330 (9th Cir. 1989) (noting 11 hours of meeting with client indicates reasonable inquiry); Greenberg v. Sala, 822 F.2d 882, 887 (9th Cir. 1987) (stating that 100 hours of legal research evidences complaint was not frivolous).
173. See Fed. R. Civ. P. 11(b)(2) (stating that reasonable inquiry exists when "the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law" (emphasis added)).
174. See Lobel, supra note 80, at 1331-32, 1333-35.
175. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (holding classification must "rationally further a legitimate state interest").
176. See Immanuel Kant, Foundations of the Metaphysics of Morals (passim) (1793); see also Cass R. Sunstein, The Partial Constitution 17 (1993) ("In American constitutional law, government must always have a reason for what it does. . . . The required reason must count as a public-regarding one. Government cannot appeal to private interest alone.").
177. See Immanuel Kant, Foundations of the Metaphysics of Morals (passim) (1793); see also Cass R. Sunstein, The Partial Constitution 17 (1993) ("In American constitutional law, government must always have a reason for what it does. . . . The required reason must count as a public-regarding one. Government cannot appeal to private interest alone.").
178. See, e.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) ("The plain meaning of legislation should be conclusive, except in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters."); Green v. Hocking, 9 F.3d 18, 22 (6th Cir. 1993) (looking to drafters' intent and not just text in interpreting Rule 11).
179. See United States v. Carley, 783 F.2d 341, 344 (2d Cir.) (upholding sanctions for arguments that income tax is unconstitutional and wages are not income), cert. denied, 476 U.S. 1142 (1986); Lepucki v. Van Wormer, 765 F.2d 86, 88-89 (7th Cir.) (upholding sanctions for argument that federal reserve notes not legal tender), cert. denied, 474 U.S. 827 (1985); Stelly v. Commissioner, 761 F.2d 1113, 1115 (5th Cir.) (upholding sanctions for argument that wages are not gain under Sixteenth Amendment because compensation for labor is even exchange), cert. denied, 474 U.S. 851 (1985); Frost v. Commissioner, 624 F. Supp. 316, 317 (S.D. Miss. 1985) (upholding sanctions for argument that wages are not income); Nixon v. Phillipoff, 615 F. Supp. 890, 896 (N.D. Ind. 1985) (upholding sanctions for argument that federal reserve notes are not legal tender), aff'd, 787 F.2d 596 (7th Cir. 1986); see also Kassin, supra note 43, at 17 (noting only issue of legal frivolousness on which a high percentage - 83.4% - of judges agreed sanctions were appropriate involved tax protesters). These arguments are treated as substantively frivolous, even though in a different political or social environment, they might even be meritorious. See Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 608 (1869) (holding Congress had no power to make federal reserve notes legal tender for debts incurred in coin-backed currency); Legal Tender Cases, 79 U.S. (12 Wall.) 457, 553-54 (1870) (overruling Hepburn). The plaintiff's argument in Stelly v. Commissioner, for example, is straight out of Marx. One can also imagine Hepburn revivified if Congress attempted to satisfy the national debt by printing more dollars and causing wild inflation.
180. See United States v. Carley, 783 F.2d 341, 344 (2d Cir.) (upholding sanctions for arguments that income tax is unconstitutional and wages are not income), cert. denied, 476 U.S. 1142 (1986); Lepucki v. Van Wormer, 765 F.2d 86, 88-89 (7th Cir.) (upholding sanctions for argument that federal reserve notes not legal tender), cert. denied, 474 U.S. 827 (1985); Stelly v. Commissioner, 761 F.2d 1113, 1115 (5th Cir.) (upholding sanctions for argument that wages are not gain under Sixteenth Amendment because compensation for labor is even exchange), cert. denied, 474 U.S. 851 (1985); Frost v. Commissioner, 624 F. Supp. 316, 317 (S.D. Miss. 1985) (upholding sanctions for argument that wages are not income); Nixon v. Phillipoff, 615 F. Supp. 890, 896 (N.D. Ind. 1985) (upholding sanctions for argument that federal reserve notes are not legal tender), aff'd, 787 F.2d 596 (7th Cir. 1986); see also Kassin, supra note 43, at 17 (noting only issue of legal frivolousness on which a high percentage - 83.4% - of judges agreed sanctions were appropriate involved tax protesters). These arguments are treated as substantively frivolous, even though in a different political or social environment, they might even be meritorious. See Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 608 (1869) (holding Congress had no power to make federal reserve notes legal tender for debts incurred in coin-backed currency); Legal Tender Cases, 79 U.S. (12 Wall.) 457, 553-54 (1870) (overruling Hepburn). The plaintiff's argument in Stelly v. Commissioner, for example, is straight out of Marx. One can also imagine Hepburn revivified if Congress attempted to satisfy the national debt by printing more dollars and causing wild inflation.
181. See United States v. Carley, 783 F.2d 341, 344 (2d Cir.) (upholding sanctions for arguments that income tax is unconstitutional and wages are not income), cert. denied, 476 U.S. 1142 (1986); Lepucki v. Van Wormer, 765 F.2d 86, 88-89 (7th Cir.) (upholding sanctions for argument that federal reserve notes not legal tender), cert. denied, 474 U.S. 827 (1985); Stelly v. Commissioner, 761 F.2d 1113, 1115 (5th Cir.) (upholding sanctions for argument that wages are not gain under Sixteenth Amendment because compensation for labor is even exchange), cert. denied, 474 U.S. 851 (1985); Frost v. Commissioner, 624 F. Supp. 316, 317 (S.D. Miss. 1985) (upholding sanctions for argument that wages are not income); Nixon v. Phillipoff, 615 F. Supp. 890, 896 (N.D. Ind. 1985) (upholding sanctions for argument that federal reserve notes are not legal tender), aff'd, 787 F.2d 596 (7th Cir. 1986); see also Kassin, supra note 43, at 17 (noting only issue of legal frivolousness on which a high percentage - 83.4% - of judges agreed sanctions were appropriate involved tax protesters). These arguments are treated as substantively frivolous, even though in a different political or social environment, they might even be meritorious. See Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 608 (1869) (holding Congress had no power to make federal reserve notes legal tender for debts incurred in coin-backed currency); Legal Tender Cases, 79 U.S. (12 Wall.) 457, 553-54 (1870) (overruling Hepburn). The plaintiff's argument in Stelly v. Commissioner, for example, is straight out of Marx. One can also imagine Hepburn revivified if Congress attempted to satisfy the national debt by printing more dollars and causing wild inflation.
182. See Bast v. Cohen, Dunn & Sinclair, 59 F.3d 492, 494, 496 (4th Cir. 1995) (awarding sanctions under Fed. R. Civ. P. 38 for frivolous appeal in lawsuit that "has all the markings of a vendetta").
183. 860 F.2d 877 (9th Cir. 1988), cert. denied, 489 U.S. 1080 (1989).
184. See id. at 879.
185. See id. at 879-80.
186. See id. at 883.
187. Id. at 884. Melissa Nelken refers to this as "arbitrary moralizing." Nelken, supra note 49, at 399 n.95; see also Ross v. City of Waukegan, 764 F. Supp. 1308, 1310 (N.D. Ill. 1991) (refusing to sanction plaintiff for procedural errors in suing city in case where plaintiff's relative drowned while city officials kept bystanders from rescuing him), vacated and remanded for clearer explanation of denial of sanctions, 5 F.3d 1084, 1085-86, 1090 (7th Cir. 1993). Worth contrasting with this case is Dore v. Schultz, 582 F. Supp. 154 (S.D.N.Y. 1984), in which plaintiff's child was kidnapped and taken to Kenya by his natural father. Plaintiff in Dore sued the Department of State and Secretary of State for failing to enforce immigration laws, because the child was able to leave the country without a passport. See id. at 156. Because defendant had no "special relationship" with plaintiff, the common law (and therefore the Federal Tort Claims Act) provided no remedy. See id. at 158. Plaintiff was sanctioned for bringing the suit, despite the seriousness of her injury and the existence of good arguments for changing the law. See id.; see also DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 205-12 (1989) (rejecting claims, over dissent of three justices, that county social workers' interactions with abused child created "special relationship" and that failure to protect child from further abuse violated child's substantive due process rights).
188. whoever signs the pleading, certifying that it is based on reasonable inquiry into law and fact, is liable for sanctions. See Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 124 (1989) (holding individual signor of documents solely liable for Rule 11 sanctions).
189. The 1993 amendments to Rule 11 note that monetary sanctions for legally frivolous claims are properly imposed solely on lawyers, not their clients. See Fed. R. Civ. P. 11(b)(2) advisory committee's note. Many courts adhere to the rule in Haines v. Kerner, 404 U.S. 519, 520 (1972), that courts are to liberally construe the pleadings of pro se litigants. See generally cases cited supra note 88. For a more complete treatment of this issue, see Eric J.R. Nichols, Note, Preserving Pro Se Representation in an Age of Rule 11 Sanctions, 67 Tex. L. Rev. 351, 363 (1988) (arguing for more lenient treatment of pro se litigants).
190. Fed. R. Civ. P. 11 (1982) (repealed 1983). See generally supra note 40. This Article takes no position on the appropriate standard for sanctioning failures to undertake reasonable factual investigations.
191. See Kassin, supra note 43, at 17-23, 75-77.
192. See Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1781-85 (1991) (discussing historical trend leading to expansion of doctrines granting immunity to government officials).
193. See David E. Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, 2-56 (1972) (outlining history of immunity in United States, noting origins in English sovereign immunity concepts and subsequent doctrinal alterations); Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 19-39 (1963) (examining relationship of historical immunity concepts to current federal and state officer immunity standards); Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396, 414-77 (1987) (discussing origins of immunity and various rationales behind its development into current doctrine).
194. See David E. Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, 2-56 (1972) (outlining history of immunity in United States, noting origins in English sovereign immunity concepts and subsequent doctrinal alterations); Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 19-39 (1963) (examining relationship of historical immunity concepts to current federal and state officer immunity standards); Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396, 414-77 (1987) (discussing origins of immunity and various rationales behind its development into current doctrine).
195. See David E. Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, 2-56 (1972) (outlining history of immunity in United States, noting origins in English sovereign immunity concepts and subsequent doctrinal alterations); Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 19-39 (1963) (examining relationship of historical immunity concepts to current federal and state officer immunity standards); Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396, 414-77 (1987) (discussing origins of immunity and various rationales behind its development into current doctrine).
196. The rationale is usually put in terms of correcting overdeterrence created by tort law: Officials will recoil from performing necessary but controversial public duties if they fear damages liability. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814 (3982) (regarding presidential aides, "there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties" (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950))); Wood v. Strickland, 420 U.S. 308, 319-21 (1975) (explaining school board members' fear of reprisal for violating students' constitutional rights as rationale for qualified immunity). In Owen v. City of Independence, 445 U.S. 622 (1980), the Court refused to extend qualified immunity to municipalities because it reasoned that municipal employees would not be afraid of taking action if they would not be personally liable for damages. See id. at 655-56. The same is true for actions against officials in their official, rather than personal, capacity, since the official's employer will have to pay the damages. See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985) (stating that "a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself"). Not only is the deterrence rationale rather behavioristic, assuming governmental officials will respond like rats to bait, but also it has the misfortune of provoking the criticism that there is little empirical support for the view that officials are overdeterred by tort law. See Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 Wash. U. L.Q. 221, 247-49 (1983) (noting that Harlow Court discussed no data showing that executive decisionmaking was adversely affected by cost-benefit analysis in qualified immunity test); cf. David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. Pa. L. Rev. 23, 47-53 (1989) (discussing incompatibility of subjective reasonableness standard and objective reliance on clearly established principles).
197. The rationale is usually put in terms of correcting overdeterrence created by tort law: Officials will recoil from performing necessary but controversial public duties if they fear damages liability. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814 (3982) (regarding presidential aides, "there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties" (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950))); Wood v. Strickland, 420 U.S. 308, 319-21 (1975) (explaining school board members' fear of reprisal for violating students' constitutional rights as rationale for qualified immunity). In Owen v. City of Independence, 445 U.S. 622 (1980), the Court refused to extend qualified immunity to municipalities because it reasoned that municipal employees would not be afraid of taking action if they would not be personally liable for damages. See id. at 655-56. The same is true for actions against officials in their official, rather than personal, capacity, since the official's employer will have to pay the damages. See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985) (stating that "a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself"). Not only is the deterrence rationale rather behavioristic, assuming governmental officials will respond like rats to bait, but also it has the misfortune of provoking the criticism that there is little empirical support for the view that officials are overdeterred by tort law. See Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 Wash. U. L.Q. 221, 247-49 (1983) (noting that Harlow Court discussed no data showing that executive decisionmaking was adversely affected by cost-benefit analysis in qualified immunity test); cf. David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. Pa. L. Rev. 23, 47-53 (1989) (discussing incompatibility of subjective reasonableness standard and objective reliance on clearly established principles).
198. The rationale is usually put in terms of correcting overdeterrence created by tort law: Officials will recoil from performing necessary but controversial public duties if they fear damages liability. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814 (3982) (regarding presidential aides, "there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties" (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950))); Wood v. Strickland, 420 U.S. 308, 319-21 (1975) (explaining school board members' fear of reprisal for violating students' constitutional rights as rationale for qualified immunity). In Owen v. City of Independence, 445 U.S. 622 (1980), the Court refused to extend qualified immunity to municipalities because it reasoned that municipal employees would not be afraid of taking action if they would not be personally liable for damages. See id. at 655-56. The same is true for actions against officials in their official, rather than personal, capacity, since the official's employer will have to pay the damages. See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985) (stating that "a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself"). Not only is the deterrence rationale rather behavioristic, assuming governmental officials will respond like rats to bait, but also it has the misfortune of provoking the criticism that there is little empirical support for the view that officials are overdeterred by tort law. See Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 Wash. U. L.Q. 221, 247-49 (1983) (noting that Harlow Court discussed no data showing that executive decisionmaking was adversely affected by cost-benefit analysis in qualified immunity test); cf. David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. Pa. L. Rev. 23, 47-53 (1989) (discussing incompatibility of subjective reasonableness standard and objective reliance on clearly established principles).
199. Section 1983 creates a civil cause of action against state actors who subject "any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983 (1994).
200. Qualified immunity is not available in suits for injunctive relief, since injunctive relief (which is prospective only) prevents constitutional wrongs without creating the fear that officials will be deterred in new situations from exercising discretion for fear of suit. See Pulliam v. Allen, 466 U.S. 522, 541-42 (1984) (finding judicial immunity of state magistrate not bar to injunctive relief). However, the Court has suggested that state legislators also are immune from injunctive relief, since legislative immunity is grounded in part on the Speech and Debate Clause. See Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731-33 (1980) (finding Virginia Supreme Court immune from suit when acting in legislative capacity to promulgate laws prohibiting attorney advertising).
201. "[A judge's] errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decisionmaking but to intimidation." Pierson v. Ray, 386 U.S. 547, 554 (1967); see also Mireles v. Waco, 502 U.S. 9, 13 (1991) (distinguishing absolute immunity available for acts in excess of jurisdiction from acts in absence of jurisdiction); Forrester v. White, 484 U.S. 219, 227-28 (1988) (limiting application of absolute immunity to judicial acts, not administrative acts); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (providing absolute immunity for judge acting within jurisdiction).
202. See Burns v. Reed, 500 U.S. 478, 487-96 (1991) (establishing absolute immunity for conduct in hearing, but only qualified immunity for advice to police regarding investigation); Imbler v. Pachtman, 424 U.S. 409, 420 (1976) (describing prosecutorial immunity as quasi-judicial in nature).
203. See Tenney v. Brandhove, 341 U.S. 367, 377 (1951).
204. See Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).
205. See Pierson, 386 U.S. at 555-57.
206. See Wood v. Strickland, 420 U.S. 308, 318-22 (1975).
207. See O'Connor v. Donaldson, 422 U.S. 563, 566-67 (1975).
208. See Procunier v. Navarette, 434 U.S. 555, 561-62 (1978).
209. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that "government officials performing discretionary functions" are entitled to qualified immunity from civil damages); Pierson, 386 U.S. at 557 (articulating previous standard that police officers are granted immunity when acting in good faith and with probable cause). The Court has spoken both in terms of "clearly established law," see Harlow, 457 U.S. at 818, and in terms of whether the official acted "objectively reasonably," see Wood, 420 U.S. at 322. The Second Circuit operationalizes these different articulations by creating a three-factored inquiry: (1) is the right in question defined with "reasonable specificity?"; (2) does the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question?; and (3) under preexisting law, would a reasonable defendant official have understood that his or her acts were unlawful? See Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991). By making qualified immunity turn on whether the officer's conduct was objectively reasonable, the Supreme Court hoped to allow government officials to avoid trial, since the trial court could decide the issue of whether the law was clearly established on a motion to dismiss or for summary judgment. Allegations of malice, by contrast, inevitably created issues of fact that would have to be decided by the jury. See Harlow, 457 U.S. at 818. Under Harlow, even if an official violated clearly established law, he is still entitled to immunity if he can show "extraordinary circumstances" and can "prove that he neither knew nor should have known of the relevant legal standard." Id. at 819. In the Ninth Circuit, this standard is implemented by shifting burdens of proof: the plaintiff has the burden of proving clearly established law; the defendant has the burden of proving her actions were reasonable. See Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992) (reversing denial of motion for summary judgment because plaintiff failed to show that IRS agents violated "clearly established law" by seizing purchaser's funds and using them to pay vendor's delinquent taxes). Few courts have applied this second prong. See Henk J. Brands, Note, Qualified Immunity and the Allocation of Decision-Making Functions Between Judge and Jury, 90 Colum. L. Rev. 1045, 1047 n.22 (1990) (citing cases demonstrating rare use and lack of development of test).
210. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that "government officials performing discretionary functions" are entitled to qualified immunity from civil damages); Pierson, 386 U.S. at 557 (articulating previous standard that police officers are granted immunity when acting in good faith and with probable cause). The Court has spoken both in terms of "clearly established law," see Harlow, 457 U.S. at 818, and in terms of whether the official acted "objectively reasonably," see Wood, 420 U.S. at 322. The Second Circuit operationalizes these different articulations by creating a three-factored inquiry: (1) is the right in question defined with "reasonable specificity?"; (2) does the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question?; and (3) under preexisting law, would a reasonable defendant official have understood that his or her acts were unlawful? See Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991). By making qualified immunity turn on whether the officer's conduct was objectively reasonable, the Supreme Court hoped to allow government officials to avoid trial, since the trial court could decide the issue of whether the law was clearly established on a motion to dismiss or for summary judgment. Allegations of malice, by contrast, inevitably created issues of fact that would have to be decided by the jury. See Harlow, 457 U.S. at 818. Under Harlow, even if an official violated clearly established law, he is still entitled to immunity if he can show "extraordinary circumstances" and can "prove that he neither knew nor should have known of the relevant legal standard." Id. at 819. In the Ninth Circuit, this standard is implemented by shifting burdens of proof: the plaintiff has the burden of proving clearly established law; the defendant has the burden of proving her actions were reasonable. See Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992) (reversing denial of motion for summary judgment because plaintiff failed to show that IRS agents violated "clearly established law" by seizing purchaser's funds and using them to pay vendor's delinquent taxes). Few courts have applied this second prong. See Henk J. Brands, Note, Qualified Immunity and the Allocation of Decision-Making Functions Between Judge and Jury, 90 Colum. L. Rev. 1045, 1047 n.22 (1990) (citing cases demonstrating rare use and lack of development of test).
211. 457 U.S. 800 (1982).
212. See Pierson, 386 U.S. at 555.
213. See Harlow, 457 U.S. at 818.
214. The only case I found that awarded sanctions for losing qualified immunity claims was Porter v. Board of Education, Nos. 92 C 533, 93 C 6464, 1995 U.S. Dist. LEXIS 1850 (N.D. Ill. Feb. 14, 1995) (awarding sanctions against pro se defendant who claimed qualified immunity); see also Taylor v. Kveton, 684 F. Supp. 179, 185 n.8 (N.D. Ill. 1988) (suggesting sanctions would be warranted, though plaintiff did not seek them). Although it seems that most of the time it does not occur to plaintiffs to ask for sanctions, see, e.g., Sexton v. Arkansas Supreme Court Comm. on Professional Conduct, 725 F. Supp. 1051, 1055 (W.D. Ark. 1989) (finding qualified immunity claim "wholly without merit" without mentioning sanctions), there are a few cases in which such motions were raised and subsequently denied, see, e.g., DiMarco v. Rome Hosp., 899 F. Supp. 91, 95-96 (N.D.N.Y. 1995) (denying sanctions even after defendants "vexed" trial court by reasserting losing qualified immunity claims in motion for reconsideration); Sisak v. Amtrak, No. 91 Civ. 1030, 1994 U.S. Dist. LEXIS 5019, at *22 (S.D.N.Y. Apr. 18, 1994) (denying plaintiffs sanctions and denying defendants qualified immunity); Barbosa v. Gaztambide, 776 F. Supp. 52, 61 (D.P.R. 1991) (denying sanctions where qualified immunity was previously denied on summary judgment - sanctions denial is summary and whether plaintiffs argued that qualified immunity defense was unwarranted and sanctionable is unclear).
215. See Ireland v. Tunis, 893 F. Supp. 724, 730 (E.D. Mich. 1995) (granting qualified immunity but refusing to sanction plaintiff for arguing against it); Strong v. Board of Educ., 789 F. Supp. 99, 101-02 (E.D.N.Y. 1991) (same); Danese v. City of Roseville, 757 F. Supp. 827, 830 (E.D. Mich. 1991) (same); Shields v. Shelter, 120 F.R.D. 123, 128 (D. Colo. 1988) (same). But see Knipe v. Skinner, 19 F.3d 72, 76 (2d Cir. 1994) (upholding sanctions and reasoning that appellant "cannot credibly argue that appellees could reasonably have known in 1988 that their conduct violated clearly established constitutional rights" since rights alleged are not established at all).
216. See Daugherty v. Campbell, 935 F.2d 780, 786-87 (6th Cir. 1991), cert. denied, 502 U.S. 1060 (1992).
217. See Walsh v. Franco, 849 F.2d 66, 68-69 (2d Cir. 1988).
218. See Henderson v. DeRobertis, 940 F.2d 1055, 1059 (7th Cir. 1991), cert. denied, 503 U.S. 966 (1992).
219. See Crawford-El v. Britton, 951 F.2d 1314, 1318 (D.C. Cir. 1991), cert. denied, 506 U.S. 818 (1992).
220. See Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir. 1991), cert. denied, 504 U.S. 911 (1992).
221. See, e.g., Manzano v. South Dakota Dep't of Social Servs., 60 F.3d 505, 510 (8th Cir. 1995) (remarking balancing test for constitutional violations affecting family relationships rarely establishes clear law); DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995) (noting that balancing test for determining First Amendment rights of public employees rarely results in clearly established law); Buzek v. County of Saunders, 972 F.2d 992, 997 (8th Cir. 1992) (noting constitutional rule requiring balancing rarely results in clearly established law); Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) ("[A]llegations of constitutional violations that require courts to balance competing interests may make it more difficult to find the law 'clearly established.'"); Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992) (noting "amorphous nature" of liberty interest in familial relationships must always be balanced against governmental interests, so it is "difficult, if not impossible" for officials to know when they have transgressed clearly established law); Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.) (noting that constitutional rule requiring balancing rarely results in clearly established law), cert. denied, 479 U.S. 848 (1986); see also Kinports, supra note 18, at 153-54. But see Dahm v. Flynn, 60 F.3d 253, 258 (7th Cir. 1994) (denying qualified immunity in context requiring balancing, over dissent on this point by Judge Easterbrook); Norton v. Napper, No. 93-55325, 1994 U.S. App. LEXIS 32759, at *8 (9th Cir. Nov. 14, 1994) ("[F]luidity of the standard does not preclude a finding that the law was 'clearly established.'"); Williams v. Kentucky, 24 F.3d 1526, 1537 (6th Cir.) (denying qualified immunity in context requiring balancing), cert. denied, 115 S. Ct. 358 (1994); Roth v. Veteran's Admin., 856 F.2d 1401, 1408 (9th Cir. 1988) ("If we accepted defendants' argument . . . we essentially would be holding that public employees can never maintain [an] action alleging retaliation for exercise of their first amendment rights because adjudicating these claims requires particularized balancing.").
222. See, e.g., Manzano v. South Dakota Dep't of Social Servs., 60 F.3d 505, 510 (8th Cir. 1995) (remarking balancing test for constitutional violations affecting family relationships rarely establishes clear law); DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995) (noting that balancing test for determining First Amendment rights of public employees rarely results in clearly established law); Buzek v. County of Saunders, 972 F.2d 992, 997 (8th Cir. 1992) (noting constitutional rule requiring balancing rarely results in clearly established law); Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) ("[A]llegations of constitutional violations that require courts to balance competing interests may make it more difficult to find the law 'clearly established.'"); Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992) (noting "amorphous nature" of liberty interest in familial relationships must always be balanced against governmental interests, so it is "difficult, if not impossible" for officials to know when they have transgressed clearly established law); Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.) (noting that constitutional rule requiring balancing rarely results in clearly established law), cert. denied, 479 U.S. 848 (1986); see also Kinports, supra note 18, at 153-54. But see Dahm v. Flynn, 60 F.3d 253, 258 (7th Cir. 1994) (denying qualified immunity in context requiring balancing, over dissent on this point by Judge Easterbrook); Norton v. Napper, No. 93-55325, 1994 U.S. App. LEXIS 32759, at *8 (9th Cir. Nov. 14, 1994) ("[F]luidity of the standard does not preclude a finding that the law was 'clearly established.'"); Williams v. Kentucky, 24 F.3d 1526, 1537 (6th Cir.) (denying qualified immunity in context requiring balancing), cert. denied, 115 S. Ct. 358 (1994); Roth v. Veteran's Admin., 856 F.2d 1401, 1408 (9th Cir. 1988)
223. See, e.g., Manzano v. South Dakota Dep't of Social Servs., 60 F.3d 505, 510 (8th Cir. 1995) (remarking balancing test for constitutional violations affecting family relationships rarely establishes clear law); DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995) (noting that balancing test for determining First Amendment rights of public employees rarely results in clearly established law); Buzek v. County of Saunders, 972 F.2d 992, 997 (8th Cir. 1992) (noting constitutional rule requiring balancing rarely results in clearly established law); Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) ("[A]llegations of constitutional violations that require courts to balance competing interests may make it more difficult to find the law 'clearly established.'"); Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992) (noting "amorphous nature" of liberty interest in familial relationships must always be balanced against governmental interests, so it is "difficult, if not impossible" for officials to know when they have transgressed clearly established law); Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.) (noting that constitutional rule requiring balancing rarely results in clearly established law), cert. denied, 479 U.S. 848 (1986); see also Kinports, supra note 18, at 153-54. But see Dahm v. Flynn, 60 F.3d 253, 258 (7th Cir. 1994) (denying qualified immunity in context requiring balancing, over dissent on this point by Judge Easterbrook); Norton v. Napper, No. 93-55325, 1994 U.S. App. LEXIS 32759, at *8 (9th Cir. Nov. 14, 1994) ("[F]luidity of the standard does not preclude a finding that the law was 'clearly established.'"); Williams v. Kentucky, 24 F.3d 1526, 1537 (6th Cir.) (denying qualified immunity in context requiring balancing), cert. denied, 115 S. Ct. 358 (1994); Roth v. Veteran's Admin., 856 F.2d 1401, 1408 (9th Cir. 1988) ("If we accepted defendants' argument . . . we essentially would be holding that public employees can never maintain [an] action alleging retaliation for exercise of their first amendment rights because adjudicating these claims requires particularized balancing.").
224. Positive law . . . assumes that, because the law does not exist as law before its creation, it is unknowable until announced by the lawgiver. Those subject to the law rely on the statement of the law to guide their actions. From this perspective, subjects need not only an authoritative lawgiver, but an authoritative procedure for lawgiving - a rule for recognizing which rules are law. . . . . Consequently, adjudication is often pictured as the application of the "core" meaning of an authoritatively promulgated rule. Judges create new rules only in the shadowy crevices (penumbral interstices) of the existing rules. Because judges may disagree about what laws should be made in these peripheral cases, appellate review is necessary to provide a "last word" - an authoritative statement of the law. Linda Meyer, "Nothing We Say Matters": Teague and New Rules, 61 U. Chi. L. Rev. 423, 461, 464 (1994) (footnote omitted).
225. Positive law . . . assumes that, because the law does not exist as law before its creation, it is unknowable until announced by the lawgiver. Those subject to the law rely on the statement of the law to guide their actions. From this perspective, subjects need not only an authoritative lawgiver, but an authoritative procedure for lawgiving - a rule for recognizing which rules are law. . . . . Consequently, adjudication is often pictured as the application of the "core" meaning of an authoritatively promulgated rule. Judges create new rules only in the shadowy crevices (penumbral interstices) of the existing rules. Because judges may disagree about what laws should be made in these peripheral cases, appellate review is necessary to provide a "last word" - an authoritative statement of the law. Linda Meyer, "Nothing We Say Matters": Teague and New Rules, 61 U. Chi. L. Rev. 423, 461, 464 (1994) (footnote omitted).
226. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that discovery should not be allowed until threshold question of immunity is resolved); Brands, supra note 119, at 1055-56 (addressing proper allocation of questions between judge and jury in qualified immunity cases); see also Hunter v. Bryant, 502 U.S. 224, 227-29 (1991) (criticizing Ninth Circuit for sending qualified immunity question to jury); Simkunas v. Tardi, 930 F.2d 1287, 1291 (7th Cir. 1991) (stating that question of whether qualified immunity attaches is for judge to decide and is subject to de novo review).
227. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that discovery should not be allowed until threshold question of immunity is resolved); Brands, supra note 119, at 1055-56 (addressing proper allocation of questions between judge and jury in qualified immunity cases); see also Hunter v. Bryant, 502 U.S. 224, 227-29 (1991) (criticizing Ninth Circuit for sending qualified immunity question to jury); Simkunas v. Tardi, 930 F.2d 1287, 1291 (7th Cir. 1991) (stating that question of whether qualified immunity attaches is for judge to decide and is subject to de novo review).
228. Lawyers may even flat out and repeatedly argue for overruling a precedent. For example, during nearly every term in the late eighties, the Supreme Court heard a case in which one side argued for the overruling of Hans v. Louisiana, 134 U.S. 1 (1890), a case that required statutes to express clear congressional intent to depart from the Eleventh Amendment in allowing citizens to sue states in federal court under a particular statute. See, e.g., Dellmuth v. Muth, 491 U.S. 223 (1989); Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468 (1987); Papasan v. Allain, 478 U.S. 265 (1986); Green v. Mansour, 474 U.S. 64 (1985); Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985).
229. In contrast to the positive law framework, common law does not hang on the exact words of an opinion. The words, even of a duly appointed Article III court, are not themselves law, even when promulgated in the official reports of opinions of the court. They may be dicta. Skillful judges and lawyers capture the reason and result of a series of opinions; that is, they view the cases as a coherent series, rather than as the disconnected and even contradictory pronouncements they may appear to be. Law, then, is not the will of earlier judges, nor the words on the pages of their opinions. Law, from the standpoint of the common law judge, is the coherence, sense, and significance of a set of human actions. Meyer, supra note 131, at 465 (footnote omitted).
230. In contrast to the positive law framework, common law does not hang on the exact words of an opinion. The words, even of a duly appointed Article III court, are not themselves law, even when promulgated in the official reports of opinions of the court. They may be dicta. Skillful judges and lawyers capture the reason and result of a series of opinions; that is, they view the cases as a coherent series, rather than as the disconnected and even contradictory pronouncements they may appear to be. Law, then, is not the will of earlier judges, nor the words on the pages of their opinions. Law, from the standpoint of the common law judge, is the coherence, sense, and significance of a set of human actions. Meyer, supra note 131, at 465 (footnote omitted).
231. See Karen M. Blum, Qualified Immunity: A User's Manual, 26 Ind. L. Rev. 187, 199-205 (1993) (surveying various considerations and tests used by courts to determine whether a right is "clearly established").
232. See Procunier v. Navarette, 434 U.S. 555, 565 (1978) (holding that prison officials were entitled to qualified immunity because no clearly established law protected state prisoners' mail at time officials acted).
233. See Blum, supra note 135, at 203-05 (noting circuit conflict over relevance of extrajurisdictional authority in qualified immunity cases); Kinports, supra note 18, at 140-48 (same); Kit Kinports, Qualified Immunity in Section 1983 Cases: The Unanswered Questions, 23 Ga. L. Rev. 597, 618-34 (1989) (same).
234. See Blum, supra note 135, at 203-05 (noting circuit conflict over relevance of extrajurisdictional authority in qualified immunity cases); Kinports, supra note 18, at 140-48 (same); Kit Kinports, Qualified Immunity in Section 1983 Cases: The Unanswered Questions, 23 Ga. L. Rev. 597, 618-34 (1989) (same).
235. See Blum, supra note 135, at 203-05 (noting circuit conflict over relevance of extrajurisdictional authority in qualified immunity cases); Kinports, supra note 18, at 140-48 (same); Kit Kinports, Qualified Immunity in Section 1983 Cases: The Unanswered Questions, 23 Ga. L. Rev. 597, 618-34 (1989) (same).
236. See Blum, supra note 135, at 218-22 (outlining circuit split); Kathryn R. Urbonya, Problematic Standards of Reasonableness: Qualified Immunity in Section 1983 Actions for a Police Officer's Use of Excessive Force, 62 Temp. L. Rev. 61, 85 (1989) (examining qualified immunity defense in Fourth and Fourteenth Amendment claims against law enforcement officials).
237. See Blum, supra note 135, at 218-22 (outlining circuit split); Kathryn R. Urbonya, Problematic Standards of Reasonableness: Qualified Immunity in Section 1983 Actions for a Police Officer's Use of Excessive Force, 62 Temp. L. Rev. 61, 85 (1989) (examining qualified immunity defense in Fourth and Fourteenth Amendment claims against law enforcement officials).
238. For discussion of cases in other circuits, see Blum, supra note 135, at 199-202; Kinports, supra note 18, at 149-56.
239. For discussion of cases in other circuits, see Blum, supra note 135, at 199-202; Kinports, supra note 18, at 149-56.
240. 60 F.3d 664 (9th Cir. 1995).
241. 429 U.S. 97 (1976).
242. See id. at 104-05.
243. See Kelley, 60 F.3d at 666-67.
244. Id. at 667.
245. See id.
246. Id. The Ninth Circuit rejected another move to narrow the scope of "clearly established law," in Robins v. Meecham, 60 F.3d 1436 (9th Cir. 1995), a case in which a prisoner sued a guard who had injured him when firing birdshot at another inmate. See id. at 1438. The prisoner claimed that the guard's actions were malicious and sadistic for the very purpose of causing harm - the standard articulated in Wilson v. Seiter, 501 U.S. 294 (1991). See Robins, 60 F.3d at 1440. The guards asked for qualified immunity on the ground that it was not clearly established that the doctrine of transferred intent applied, since the plaintiff alleged the guard's malice was directed at another prisoner, not the plaintiff. See id. at 1441. The panel concluded that the Wilson standard did not require malice toward a particular prisoner, so there was no need for the doctrine of transferred intent: This situation presents no new principles of which the officers could not have reasonably been aware regarding the constraints which the Eighth Amendment places on the actions of prison officials. The right of Robins to be free from harm caused by the malicious and sadistic actions of the correctional officers was clearly established at law. Id. at 1442.
247. 955 F.2d 1092 (6th Cir. 1992).
248. See id. at 1092.
249. See id. A different panel of the Sixth Circuit decided to the contrary in Heflin v. Stewart County, 958 F.2d 709 (6th Cir.), cert. denied, 506 U.S. 998 (1992), another case in which officers delayed in cutting down and attempting to resuscitate an inmate who had been hanged. The majority denied qualified immunity to the officers who had delayed cutting down the inmate. See id. at 717. Judge Kennedy, however, dissented on the ground that "the right of hanging victims displaying no vital signs to be immediately cut down and administered CPR by jail officials was [not] clearly established such that a reasonable official would have known of it." Id. at 719 (Kennedy, J., dissenting). Another case illustrating the Sixth Circuit's insistence on a high level of specificity is Bills v. Aseltine, 52 F.3d 596 (6th Cir.), cert. denied, 116 S. Ct. 179 (1995). There, the plaintiff sued police officials who had brought a private security officer for General Motors (GM) to plaintiff's house when officials were implementing a search warrant. See id. at 599. The GM security officer accompanied officers during their search and took photographs of items that were not the subject of the search warrant, but that he suspected were stolen from GM. See id. In its decision, the Sixth Circuit mentioned a Second Circuit case, Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), cert. denied, 115 S. Ct. 1689 (1995), which denied qualified immunity to Secret Service agents who had allowed a camera crew from CBS's Street Stories to accompany them while executing a search warrant. See Bills, 52 F.3d at 602. In Ayeni, the Second Circuit framed the right at stake as follows: Agent Mottola correctly asserts that there is no reported decision that expressly forbids searching agents from bringing members of the press into a home to observe and report on their activities. He therefore argues that there was no clearly established rule prohibiting such an act. The argument lacks merit. It has long been established that the objectives of the Fourth Amendment are to preserve the right of privacy to the maximum extent consistent with reasonable exercise of law enforcement duties . . . . Mottola exceeded well-established principles when he brought into the Ayeni home persons who were neither authorized by the warrant to be there nor serving any legitimate law enforcement purpose by being there. A private home is not a soundstage for law enforcement theatricals. Ayeni, 35 F.3d at 686. The Sixth Circuit disagreed with the level of generality at which the Second Circuit had articulated the right in question. The panel reasoned: "It is hard to imagine any contested search that could not be portrayed as an invasion of privacy, and even more difficult to see how a police officer could tailor his conduct under such a vague standard." Bills, 52 F.3d at 602. Instead, the right at stake should have been characterized as the right not to have a private party who is not assisting police present during a search. See id. The court stated that "[t]he full parameters of the role of private citizens in executing search warrants has not been completely, or clearly, defined." Id, at 603. This discussion is technically dicta. Although the panel said there was no clearly established rule concerning the presence of private parties during searches, in a prior appeal the court had already denied qualified immunity to the agent who invited the GM security officer, allowing the jury to decide whether the agent's conduct was reasonable. See Bills v. Aseltine, 958 F.2d 697, 705 (6th Cir. 1992). The agent was then exonerated by the jury. See Bills, 52 F.3d at 604. The issue on this second appeal was whether the district court had erred in granting qualified immunity to other officers who had assisted in the search and had failed to object to the GM officer's presence. See id. at 600. Since the jury found the inviting agent's conduct to be reasonable, the court decided that the other agents' derivative conduct was likewise reasonable. See id. at 604; see also Marsh v. Arn, 937 F.2d 1056, 1067-68 (6th Cir. 1991) (citation omitted): [W]hile a cause of action for failure to protect an inmate from attack by another inmate under a deliberate indifference standard of liability was established [at the time] . . . we find that the right of an inmate to be segregated due to the threats of a roommate had yet to be sufficiently defined in this circuit to be considered "clearly established."
250. See Steven J. Burton, An Introduction to Law and Legal Reasoning 36-37 (1985) (describing practice of disanalogizing); Levi, supra note 79, at 2-3 (same); Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 577 (1987) (stating that "the relevance of an earlier precedent depends on how we characterize the facts arising in an earlier case"); A.W.B. Simpson, The Ratio Decidendi of a Case, 21 Mod. L. Rev. 155, 155-60 (1958) (examining question of whether rule of law judge uses as basis for her decision is binding, given possibility of distinguishing case on its facts).
251. See Steven J. Burton, An Introduction to Law and Legal Reasoning 36-37 (1985) (describing practice of disanalogizing); Levi, supra note 79, at 2-3 (same); Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 577 (1987) (stating that "the relevance of an earlier precedent depends on how we characterize the facts arising in an earlier case"); A.W.B. Simpson, The Ratio Decidendi of a Case, 21 Mod. L. Rev. 155, 155-60 (1958) (examining question of whether rule of law judge uses as basis for her decision is binding, given possibility of distinguishing case on its facts).
252. See Steven J. Burton, An Introduction to Law and Legal Reasoning 36-37 (1985) (describing practice of disanalogizing); Levi, supra note 79, at 2-3 (same); Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 577 (1987) (stating that "the relevance of an earlier precedent depends on how we characterize the facts arising in an earlier case"); A.W.B. Simpson, The Ratio Decidendi of a Case, 21 Mod. L. Rev. 155, 155-60 (1958) (examining question of whether rule of law judge uses as basis for her decision is binding, given possibility of distinguishing case on its facts).
253. See Steven J. Burton, An Introduction to Law and Legal Reasoning 36-37 (1985) (describing practice of disanalogizing); Levi, supra note 79, at 2-3 (same); Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 577 (1987) (stating that "the relevance of an earlier precedent depends on how we characterize the facts arising in an earlier case"); A.W.B. Simpson, The Ratio Decidendi of a Case, 21 Mod. L. Rev. 155, 155-60 (1958) (examining question of whether rule of law judge uses as basis for her decision is binding, given possibility of distinguishing case on its facts).
254. See 2 John Austin, The Providence of Jurisprudence Determined 372-73 (London, Murray 1861).
255. See Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1107 (1990) (advocating intermediate level of generality in defining fundamental rights).
256. For a detailed discussion of the positions of the other circuits on this question, see Blum, supra note 135, at 203-05; Fallon & Meltzer, supra note 106, at 1751 n.105; Kinports, supra note 18, at 140-48.
257. For a detailed discussion of the positions of the other circuits on this question, see Blum, supra note 135, at 203-05; Fallon & Meltzer, supra note 106, at 1751 n.105; Kinports, supra note 18, at 140-48.
258. For a detailed discussion of the positions of the other circuits on this question, see Blum, supra note 135, at 203-05; Fallon & Meltzer, supra note 106, at 1751 n.105; Kinports, supra note 18, at 140-48.
259. Schroeder v. Kaplan, No. 93-17123, 1995 WL 398878, at *1 (9th Cir. July 7, 1995) (quoting Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1450 (9th Cir. 1995)).
260. Marsh v. Arn, 937 F.2d 1056, 1069 (6th Cir. 1991). In Black v. Parke, 4 F.3d 442 (6th Cir. 1993), the Sixth Circuit articulated a new standard: "[I]n the ordinary instance, to find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law. For the decisions of other courts to provide such 'clearly established law,' these decisions must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting." Id. at 445 (quoting Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988)). The Sixth Circuit has softened its approach in recent cases. See Rodgers v. Jabe, 43 F.3d 1082, 1086 (6th Cir. 1995) (noting that "law of the highest court in the state may also be considered" (citing Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir. 1988))); see also Daugherty v. Campbell, 935 F.2d 780, 785-87 (6th Cir. 1991) (relying on cases from Eighth, First, and Fifth Circuits to "clearly establish" right), cert. denied, 502 U.S. 1060 (1992).
261. See Wood v. Ostrander, 879 F.2d 583, 596 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990).
262. See id. at 586.
263. Id. at 593-94.
264. 930 F.2d 1516 (10th Cir.), cert. denied, 502 U.S. 1013 (1991).
265. Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990); White v. Rochford, 592 F.2d 381 (7th Cir. 1979).
266. Hilliard, 930 F.2d at 1520.
267. 489 U.S. 189, 201 (1989) (holding state's failure to take child from abusive parent did not violate any constitutional right).
268. Hilliard, 930 F.2d at 1520. Ironically, here the more general characterization of the right redounds to the defendant's, not the plaintiff's, benefit. DeShaney may be easily distinguished where state actors have left a plaintiff more vulnerable to outside dangers. See Medina v. City & County of Denver, 960 F.2d 1493, 1497 n.5 (10th Cir. 1992) (stating that DeShaney does not apply when police alter status quo, in case where plaintiff bystander was struck by fleeing suspect chased by police).
269. 490 U.S. 386 (1989).
270. See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (noting courts must look to such factors to determine if Constitution has been violated), cert. denied, 414 U.S. 1033 (1973).
271. Graham, 490 U.S. at 396. Graham suggests that courts determine reasonableness by considering the severity of the crime involved, the threat to the safety of the officers posed by the suspect, and any resistance to arrest. See id.
272. See, e.g., Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993) (noting scope of qualified immunity must be evaluated using same objective reasonableness criteria as in Fourth Amendment inquiry), cert. denied, 114 S. Ct. 2672 (1994); Hopkins v. Andaya, 958 F.2d 881, 885 n.3 (9th Cir. 1992) (stating that in Fourth Amendment unreasonable force cases, qualified immunity inquiry is same as reasonableness inquiry), cert. denied, 115 S. Ct. 1097 (1995); Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991) (noting in dicta that qualified immunity defense and excessive force inquiry are both governed by objective reasonableness standard); Hunter v. District of Columbia, 943 F.2d 69, 77 (D.C. Cir. 1991) (expressing in dicta "doubt whether a substantively distinct qualified immunity defense would be available to an officer acting after Graham"); Jackson v. Hoylman, 933 F.2d 401, 402-03 (6th Cir. 1991) (noting whether force was excessive turns on whether actions were objectively reasonable under circumstances), cert. denied, 114 S. Ct. 2704 (1994); Street v. Parham, 929 F.2d 537, 540-41 & n.2 (10th Cir. 1991) (holding district court erred in instructing jury on both excessive force and qualified immunity, since "[t]his is one of the rare instances where the determination of liability and the availability of qualified immunity depend on the same findings").
273. See, e.g., Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) (stating qualified immunity inquiry separate from excessive force inquiry and involves determining whether reasonable officer could have believed use of force was reasonable); Wright v. Whiddon, 951 F.2d 297, 300 (11th Cir. 1992) (looking to prior cases to determine whether courts had said force used in similar circumstances was reasonable); Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991) (noting primary question in qualified immunity claim is whether officer acted reasonably in eyes of reasonable police officer); see also Finnegan v. Fountain, 915 F.2d 817 (2d Cir. 1990). Finnegan held that the jury should not have decided the qualified immunity question, since "'juries are hardly suited to make decisions that require an analysis of legal concepts and . . . the application of highly generalized legal principles. Moreover, such an analysis would seem to invite each jury to speculate on the predictability of its own verdict.'" Id. at 821-22 (quoting Warren v. Dwyer, 906 F.2d 70, 77 (2d Cir.) (Winter, J., dissenting), cert. denied, 498 U.S. 967 (1990)); see also Brown v. Glossip, 878 F.2d 871, 873-74 (5th Cir. 1989) (stating qualified immunity is separate issue from excessive force); Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988) (noting qualified immunity turns on whether reasonable government official could have believed conduct was lawful, but excessive force is more subjective); Bates v. Jean, 745 F.2d 1146, 1151-52 (7th Cir. 1984) (using wholly objective standard for qualified immunity but reasonableness test to determine whether officer knew that conduct violated law). The law in the Ninth Circuit is in some disarray. Compare Thorsted, 858 F.2d at 573-75 (treating qualified immunity as separate inquiry) with Hopkins, 958 F.2d at 884 n.3 (determining qualified immunity not separate inquiry) with Chew v. Gates, 27 F.3d 1432, 1447-49, 1460-61 (9th Cir. 1994) (finding qualified immunity sometimes separate inquiry, as where question in excessive force claim requires determination of whether use of police dog is reasonable force; but dissenting judge, Norris, argues no need to reduce level of generality further), cert. denied, 115 S. Ct. 1097 (1995).
274. 483 U.S. 635 (1987).
275. See id. at 646 (declining to make exception to qualified immunity standard of reasonableness "in light of current American law" in search and seizure case).
276. Id. at 643-44 (citation omitted).
277. 929 F.2d 537 (10th Cir. 1991).
278. Id. at 541 n.2 (citations omitted) (quoting Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991) (quoting Anderson, 483 U.S. at 644)).
279. Finnegan v. Fountain, 915 F.2d 817, 823-24 (2d Cir. 1990) (citations omitted) (quoting Anderson, 483 U.S. at 639-40).
280. The Second Circuit in Finnegan recognized that two different meanings of reasonableness were being used, though it arguably confused the issue more in trying to articulate them: While the Supreme Court has explicitly rejected the argument that a police officer may not act "reasonably unreasonably" in conducting a warrantless search of a home, it did not explain how the two standards of reasonableness under the claim and the defense differ from each other. In Warren v. Dwyer, we made such a distinction between the reasonableness inquiries underlying a Fourth Amendment claim for an arrest without probable cause and qualified immunity. We stated that the probable cause inquiry involved essentially an ex post inquiry, judging reasonableness from the "actual circumstances . . . found as a matter of fact," while the qualified immunity involved an ex ante inquiry, judging reasonableness "from any reasonable point of view, including even a factual misperception, the officer may reasonably have harbored at the time the events took place." It is questionable whether this same distinction holds up in the context of an excessive-force claim case, because the Supreme Court has made clear that the excessive-force inquiry is not made from an ex post perspective, but from the ex ante "perspective of a reasonable officer on the scene." Id. at 824 n.11 (citations omitted) (quoting Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990)).
281. See ACT UP!/PORTLAND v. Bagley, 988 F.2d 868, 877 (9th Cir. 1993) (Norris, J., dissenting) (noting "reasonableness is and always has been a jury question"); Street, 929 F.2d at 540-41 & 541 n.2 (holding district court erred in instructing jury on both excessive force and qualified immunity, since "[t]his is one of the rare instances where the determination of liability and the availability of qualified immunity depend on the same findings").
282. Cf. Finnegan, 915 F.2d at 823-24 (stating it is for court to determine whether unlawfulness of conduct should have been apparent to officer).
283. 8 F.3d 917 (2d Cir. 1993).
284. See id. at 919-20.
285. See id. at 920.
286. See id. at 922-23.
287. 935 F.2d 780, 788 (6th Cir. 1991) (Nelson, J., dissenting), cert. denied, 502 U.S. 1060 (1992).
288. Id. (footnote omitted) (citations omitted) (emphasis omitted) (quoting Saldana v. Garza, 684 F.2d 1159, 1165 (5th Cir. 1982), cert. denied, 460 U.S. 1012 (1983)).
289. See Meyer, supra note 131, at 423 ("Limited to its facts, a case will guide future cases only in the extraordinary event that history repeats itself.").
290. See Hart, supra note 7, at 138-44 (analogizing ambiguity in law to case of game ruled by discretion of official scorer).
291. See id.
292. See id.
293. See Hilliard v. City & County of Denver, 930 F.2d 1516, 1516-18, 1521 (10th Cir.) (holding that police officers violated no constitutional right in leaving woman passenger stranded in high crime district after arresting driver and impounding car, but stating court is "appalled by the conduct of the defendants in this case"), cert. denied, 502 U.S. 1013 (1991).
294. 955 F.2d 1092 (6th Cir. 1992).
295. See id. at 1096-98 (affirming district court's determination that officers' conduct was not contrary to established law).
296. 38 F.3d 264 (6th Cir. 1994) (holding judge's actions entitled to qualified immunity on ground that constitutional right of marital association does not extend to engagement).
297. See id. at 276. The judge was not entitled to absolute immunity because his retaliatory activities were not taken in his role as judge.
298. See id. at 275-76. The court acknowledged that as unprofessional and reprehensible as Seitz's actions seem, "[a]s is always the case when a defense of immunity is upheld, some wrongs may go unredressed as a result of this holding." The public may take some consolation in the fact that other remedies for addressing Seitz's transgressions, such as disciplinary proceedings before the state supreme court, appear to have been invoked successfully. Id. at 276 (citation omitted).
299. 55 F.3d 1158 (6th Cir. 1995).
300. See id. at 1164. The doctor wanted the body cremated before being handled by hospital employees because the man had died of AIDS. See id. at 1162. The court's decision did not rest on this ground, however. See id. at 1164-65.
301. See id. at 1164.
302. 790 F.2d 265 (2d Cir. 1986).
303. See id. at 273.
304. 49 F.3d 1154 (6th Cir. 1995).
305. See id. at 1156-57.
306. See id. at 1159-61.
307. Id. at 1162 (Bachelder, J., concurring). Compare Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990), in which a female passenger was raped after state trooper left her alone at 2:30 a.m. in a high crime neighborhood without means to get home, see id. at 592-94. In declining the trooper's invitation to distinguish the case at bar from White v. Rochford, 592 F.2d 381 (7th Cir. 1979), in which the Seventh Circuit held that police officer's abandonment of three children on an eight-lane highway after arresting the driver was a constitutional violation, the Ninth Circuit stated: The immunity standard considers whether a reasonable law enforcement officer should view the White case as controlling. Given this element of reasonableness, the qualified immunity regime of clearly established law should not be held to allow section 1983 defendants to interpose lawyerly distinctions that defy common sense in order to distinguish away clearly established law. White holds that a police officer may be liable under section 1983 when he abandons passengers of arrested drivers under circumstances which expose them to unreasonable danger. It defies common sense to find a meaningful legal distinction between the dangers facing children crossing a busy highway and a woman left alone to fend for herself at 2:30 a.m. in a high-crime area. Wood, 879 F.3d at 593.
308. 966 F.2d 292 (7th Cir. 1992).
309. See id. at 292.
310. See id.
311. Id. at 293 (alteration in original) (quoting Defendant's Brief at 9, McDonald (No. 91-2045)).
312. Id. at 295. Similarly, in Barnett v. Karpinos, 460 S.E.2d 208, 211-12 (N.C. Ct. App.), review denied, 463 S.E.2d 232 (N.C. 1995), a § 1983 suit based on execution of a warrant purporting to authorize searches of everyone found within a specified city block, the court held that the right against general searches is clearly established despite the fact that they happen so seldom that case law on the subject is virtually nonexistent. See also Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992) ("'Clearly established' . . . includes not only already specifically adjudicated rights, but those manifestly included within more general applications of the core constitutional principle invoked."); Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir. 1985) (holding case on point not always needed if officials' "conduct [is] so egregious that any reasonable person would have recognized a constitutional violation"); Stokes v. City of Chicago, 744 F. Supp. 183,188 (N.D. Ill. 1990) (rejecting claim that officers entitled to qualified immunity for suborning perjury and reasoning that "[e]ven in the absence of judicial decision and specific statutory enactment, this right is clearly established, and any reasonable officer would know this").
313. See Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge 85 (1994) ("[E]arly codes are characterized by their 'omission of the obvious.'" (quoting David Daube, Lecture on Ancient Law (Berkeley, CaL, Sept. 8, 1984))).
314. See Siegert v. Gilley, 500 U.S. 226, 233-34 (1991) (holding defamation not constitutional tort).
315. Insofar as I suggested there were no difficulties with a positivist approach to qualified immunity doctrine in a previous article - well - I was wrong. Don't see Meyer, supra note 131, at 480-81. Live and learn.
316. Of course, one might argue that officials receive more-than-fair notice, since for the rest of us, law binds us even if not yet clearly established. We give officials extra leeway here, however, so they do not have a Hobson's choice of failing in their duties or incurring liability.
317. See Tenney v. Brandhove, 341 U.S. 367, 378-79 (1951) (holding state legislators immune from civil liability for actions taken within traditional legislative sphere of authority).
318. Indeed, commentators even speak about "chilling" innovative legal theories in the Rule 11 context, just as they speak of "chilling" speech. See, e.g., Vairo, supra note 41, at 51 ("Society cannot afford to chill the Thurgood Marshalls or the Julius Chambers or their hundreds of lesser-known, and sometimes concededly lesser-prepared, -organized, and -coherent comrades.").
319. I cannot say this account is faithful to Heidegger, but it certainly owes its genesis to his work. See Martin Heidegger, Being and Time 385-423 (John Macquarrie & Edward Robinson trans., 1962) (reflecting on temporal, finite nature of human understanding and existence).
320. "The authentic future is temporalized primarily by that temporality which makes up the meaning of anticipatory resoluteness; it thus reveals itself as finite," Id. at 378.
321. The children's book Amelia Bedelia illustrates how "literal" meaning can defeat meaning. Peggy Parish, Amelia Bedelia (1992). Amelia, a housekeeper, is left alone in her employer's house with a note outlining her duties. She is told to "draw the drapes," so she sketches a nice picture of them. Id. at 25-27. She is told to "dress the chicken," so she puts a handsome green suit on the chicken. Id. at 42, 59. She is told to "dust the furniture," so she sprinkles dust all over the living room. Id. at 20-22. Needless to say, her employers are not pleased. See id. at 60; see also Francis Lieber, Legal and Political Hermeneutics 17-20 (2d ed. 1880) ("[H]uman speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith."). The literature advocating nonliteralist readings of statutes includes Guido Calabresi, A Common Law for the Age of Statutes 80-162 (1982); William N. Eskridge, Jr., Dynamic Statutory Interpretation 5-6 (1994); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 306, 317 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1174-1203 (1990); Heidi M. Hurd, Sovereignty in Silence, 99 Yale L.J. 945, 951 (1990); cf. Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 Geo. L.J. 353, 359 (1989) (providing critical discussion of theories of dynamic statutory interpretation).
322. The children's book Amelia Bedelia illustrates how "literal" meaning can defeat meaning. Peggy Parish, Amelia Bedelia (1992). Amelia, a housekeeper, is left alone in her employer's house with a note outlining her duties. She is told to "draw the drapes," so she sketches a nice picture of them. Id. at 25-27. She is told to "dress the chicken," so she puts a handsome green suit on the chicken. Id. at 42, 59. She is told to "dust the furniture," so she sprinkles dust all over the living room. Id. at 20-22. Needless to say, her employers are not pleased. See id. at 60; see also Francis Lieber, Legal and Political Hermeneutics 17-20 (2d ed. 1880) ("[H]uman speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith."). The literature advocating nonliteralist readings of statutes includes Guido Calabresi, A Common Law for the Age of Statutes 80-162 (1982); William N. Eskridge, Jr., Dynamic Statutory Interpretation 5-6 (1994); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 306, 317 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1174-1203 (1990); Heidi M. Hurd, Sovereignty in Silence, 99 Yale L.J. 945, 951 (1990); cf. Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 Geo. L.J. 353, 359 (1989) (providing critical discussion of theories of dynamic statutory interpretation).
323. The children's book Amelia Bedelia illustrates how "literal" meaning can defeat meaning. Peggy Parish, Amelia Bedelia (1992). Amelia, a housekeeper, is left alone in her employer's house with a note outlining her duties. She is told to "draw the drapes," so she sketches a nice picture of them. Id. at 25-27. She is told to "dress the chicken," so she puts a handsome green suit on the chicken. Id. at 42, 59. She is told to "dust the furniture," so she sprinkles dust all over the living room. Id. at 20-22. Needless to say, her employers are not pleased. See id. at 60; see also Francis Lieber, Legal and Political Hermeneutics 17-20 (2d ed. 1880) ("[H]uman speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith."). The literature advocating nonliteralist readings of statutes includes Guido Calabresi, A Common Law for the Age of Statutes 80-162 (1982); William N. Eskridge, Jr., Dynamic Statutory Interpretation 5-6 (1994); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 306, 317 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1174-1203 (1990); Heidi M. Hurd, Sovereignty in Silence, 99 Yale L.J. 945, 951 (1990); cf. Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 Geo. L.J. 353, 359 (1989) (providing critical discussion of theories of dynamic statutory interpretation).
324. The children's book Amelia Bedelia illustrates how "literal" meaning can defeat meaning. Peggy Parish, Amelia Bedelia (1992). Amelia, a housekeeper, is left alone in her employer's house with a note outlining her duties. She is told to "draw the drapes," so she sketches a nice picture of them. Id. at 25-27. She is told to "dress the chicken," so she puts a handsome green suit on the chicken. Id. at 42, 59. She is told to "dust the furniture," so she sprinkles dust all over the living room. Id. at 20-22. Needless to say, her employers are not pleased. See id. at 60; see also Francis Lieber, Legal and Political Hermeneutics 17-20 (2d ed. 1880) ("[H]uman speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith."). The literature advocating nonliteralist readings of statutes includes Guido Calabresi, A Common Law for the Age of Statutes 80-162 (1982); William N. Eskridge, Jr., Dynamic Statutory Interpretation 5-6 (1994); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 306, 317 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1174-1203 (1990); Heidi M. Hurd, Sovereignty in Silence, 99 Yale L.J. 945, 951 (1990); cf. Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 Geo. L.J. 353, 359 (1989) (providing critical discussion of theories of dynamic statutory interpretation).
325. The children's book Amelia Bedelia illustrates how "literal" meaning can defeat meaning. Peggy Parish, Amelia Bedelia (1992). Amelia, a housekeeper, is left alone in her employer's house with a note outlining her duties. She is told to "draw the drapes," so she sketches a nice picture of them. Id. at 25-27. She is told to "dress the chicken," so she puts a handsome green suit on the chicken. Id. at 42, 59. She is told to "dust the furniture," so she sprinkles dust all over the living room. Id. at 20-22. Needless to say, her employers are not pleased. See id. at 60; see also Francis Lieber, Legal and Political Hermeneutics 17-20 (2d ed. 1880) ("[H]uman speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith."). The literature advocating nonliteralist readings of statutes includes Guido Calabresi, A Common Law for the Age of Statutes 80-162 (1982); William N. Eskridge, Jr., Dynamic Statutory Interpretation 5-6 (1994); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 306, 317 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1174-1203 (1990); Heidi M. Hurd, Sovereignty in Silence, 99 Yale L.J. 945, 951 (1990); cf. Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 Geo. L.J. 353, 359 (1989) (providing critical discussion of theories of dynamic statutory interpretation).
326. The children's book Amelia Bedelia illustrates how "literal" meaning can defeat meaning. Peggy Parish, Amelia Bedelia (1992). Amelia, a housekeeper, is left alone in her employer's house with a note outlining her duties. She is told to "draw the drapes," so she sketches a nice picture of them. Id. at 25-27. She is told to "dress the chicken," so she puts a handsome green suit on the chicken. Id. at 42, 59. She is told to "dust the furniture," so she sprinkles dust all over the living room. Id. at 20-22. Needless to say, her employers are not pleased. See id. at 60; see also Francis Lieber, Legal and Political Hermeneutics 17-20 (2d ed. 1880) ("[H]uman speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith."). The literature advocating nonliteralist readings of statutes includes Guido Calabresi, A Common Law for the Age of Statutes 80-162 (1982); William N. Eskridge, Jr., Dynamic Statutory Interpretation 5-6 (1994); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 306, 317 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1174-1203 (1990); Heidi M. Hurd, Sovereignty in Silence, 99 Yale L.J. 945, 951 (1990); cf. Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 Geo. L.J. 353, 359 (1989) (providing critical discussion of theories of dynamic statutory interpretation).
327. The children's book Amelia Bedelia illustrates how "literal" meaning can defeat meaning. Peggy Parish, Amelia Bedelia (1992). Amelia, a housekeeper, is left alone in her employer's house with a note outlining her duties. She is told to "draw the drapes," so she sketches a nice picture of them. Id. at 25-27. She is told to "dress the chicken," so she puts a handsome green suit on the chicken. Id. at 42, 59. She is told to "dust the furniture," so she sprinkles dust all over the living room. Id. at 20-22. Needless to say, her employers are not pleased. See id. at 60; see also Francis Lieber, Legal and Political Hermeneutics 17-20 (2d ed. 1880) ("[H]uman speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith."). The literature advocating nonliteralist readings of statutes includes Guido Calabresi, A Common Law for the Age of Statutes 80-162 (1982); William N. Eskridge, Jr., Dynamic Statutory Interpretation 5-6 (1994); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 306, 317 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1174-1203 (1990); Heidi M. Hurd, Sovereignty in Silence, 99 Yale L.J. 945, 951 (1990); cf. Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 Geo. L.J. 353, 359 (1989) (providing critical discussion of theories of dynamic statutory interpretation).
328. The children's book Amelia Bedelia illustrates how "literal" meaning can defeat meaning. Peggy Parish, Amelia Bedelia (1992). Amelia, a housekeeper, is left alone in her employer's house with a note outlining her duties. She is told to "draw the drapes," so she sketches a nice picture of them. Id. at 25-27. She is told to "dress the chicken," so she puts a handsome green suit on the chicken. Id. at 42, 59. She is told to "dust the furniture," so she sprinkles dust all over the living room. Id. at 20-22. Needless to say, her employers are not pleased. See id. at 60; see also Francis Lieber, Legal and Political Hermeneutics 17-20 (2d ed. 1880) ("[H]uman speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith."). The literature advocating nonliteralist readings of statutes includes Guido Calabresi, A Common Law for the Age of Statutes 80-162 (1982); William N. Eskridge, Jr., Dynamic Statutory Interpretation 5-6 (1994); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 306, 317 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1174-1203 (1990); Heidi M. Hurd, Sovereignty in Silence, 99 Yale L.J. 945, 951 (1990); cf. Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 Geo. L.J. 353, 359 (1989) (providing critical discussion of theories of dynamic statutory interpretation).
329. The list of theorists who have argued that the Constitution must be interpreted in light of "natural law," tradition, or community morality and principle is a very long and familiar one. See, e.g., Ronald M. Dworkin, Law's Empire 355-99, 410-13 (1986); Ronald M. Dworkin, Taking Rights Seriously 131-49 (1977); Cass R. Sunstein, The Partial Constitution 93-122 (1993); Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 Harv. L. Rev. 149, 151-53 (1928); Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 4-11 (1983); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 868-69 (1978); Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. Cal. L. Rev. 551, 563-72 (1985).
330. The list of theorists who have argued that the Constitution must be interpreted in light of "natural law," tradition, or community morality and principle is a very long and familiar one. See, e.g., Ronald M. Dworkin, Law's Empire 355-99, 410-13 (1986); Ronald M. Dworkin, Taking Rights Seriously 131-49 (1977); Cass R. Sunstein, The Partial Constitution 93-122 (1993); Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 Harv. L. Rev. 149, 151-53 (1928); Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 4-11 (1983); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 868-69 (1978); Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. Cal. L. Rev. 551, 563-72 (1985).
331. The list of theorists who have argued that the Constitution must be interpreted in light of "natural law," tradition, or community morality and principle is a very long and familiar one. See, e.g., Ronald M. Dworkin, Law's Empire 355-99, 410-13 (1986); Ronald M. Dworkin, Taking Rights Seriously 131-49 (1977); Cass R. Sunstein, The Partial Constitution 93-122 (1993); Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 Harv. L. Rev. 149, 151-53 (1928); Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 4-11 (1983); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 868-69 (1978); Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. Cal. L. Rev. 551, 563-72 (1985).
332. The list of theorists who have argued that the Constitution must be interpreted in light of "natural law," tradition, or community morality and principle is a very long and familiar one. See, e.g., Ronald M. Dworkin, Law's Empire 355-99, 410-13 (1986); Ronald M. Dworkin, Taking Rights Seriously 131-49 (1977); Cass R. Sunstein, The Partial Constitution 93-122 (1993); Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 Harv. L. Rev. 149, 151-53 (1928); Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 4-11 (1983); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 868-69 (1978); Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. Cal. L. Rev. 551, 563-72 (1985).
333. The list of theorists who have argued that the Constitution must be interpreted in light of "natural law," tradition, or community morality and principle is a very long and familiar one. See, e.g., Ronald M. Dworkin, Law's Empire 355-99, 410-13 (1986); Ronald M. Dworkin, Taking Rights Seriously 131-49 (1977); Cass R. Sunstein, The Partial Constitution 93-122 (1993); Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 Harv. L. Rev. 149, 151-53 (1928); Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 4-11 (1983); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 868-69 (1978); Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. Cal. L. Rev. 551, 563-72 (1985).
334. The list of theorists who have argued that the Constitution must be interpreted in light of "natural law," tradition, or community morality and principle is a very long and familiar one. See, e.g., Ronald M. Dworkin, Law's Empire 355-99, 410-13 (1986); Ronald M. Dworkin, Taking Rights Seriously 131-49 (1977); Cass R. Sunstein, The Partial Constitution 93-122 (1993); Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 Harv. L. Rev. 149, 151-53 (1928); Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 4-11 (1983); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 868-69 (1978); Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. Cal. L. Rev. 551, 563-72 (1985).
335. The list of theorists who have argued that the Constitution must be interpreted in light of "natural law," tradition, or community morality and principle is a very long and familiar one. See, e.g., Ronald M. Dworkin, Law's Empire 355-99, 410-13 (1986); Ronald M. Dworkin, Taking Rights Seriously 131-49 (1977); Cass R. Sunstein, The Partial Constitution 93-122 (1993); Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 Harv. L. Rev. 149, 151-53 (1928); Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 4-11 (1983); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 868-69 (1978); Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. Cal. L. Rev. 551, 563-72 (1985).
336. Indeed, we understand everything on the basis of something we already know. See Stanley Fish, Normal Circumstances, Literal Language, Direct Speech Acts, the Ordinary, the Everyday, the Obvious, What Goes Without Saying, and Other Special Cases, in Is There a Text in This Class? The Authority of Interpretive Communities 268, 268-92 (1980). The "norms" under which we live pervade our lives so completely that we overlook them, seeing only the cultural and individual differences that are so much more salient. We fail to notice that we refrain from sitting next to the only other person on an empty bus, that we recognize a pile of private papers by the keys left on top as a marker, or that we step into an elevator and turn to look at the door, rather than at our fellow passengers. It takes a sociologist or anthropologist to point these things out to us. See generally Erving Goffman, Behavior in Public Places: Notes on the Social Organization of Gatherings (1963).
337. Indeed, we understand everything on the basis of something we already know. See Stanley Fish, Normal Circumstances, Literal Language, Direct Speech Acts, the Ordinary, the Everyday, the Obvious, What Goes Without Saying, and Other Special Cases, in Is There a Text in This Class? The Authority of Interpretive Communities 268, 268-92 (1980). The "norms" under which we live pervade our lives so completely that we overlook them, seeing only the cultural and individual differences that are so much more salient. We fail to notice that we refrain from sitting next to the only other person on an empty bus, that we recognize a pile of private papers by the keys left on top as a marker, or that we step into an elevator and turn to look at the door, rather than at our fellow passengers. It takes a sociologist or anthropologist to point these things out to us. See generally Erving Goffman, Behavior in Public Places: Notes on the Social Organization of Gatherings (1963).
338. Because I recognize that indeterminacy itself is varied (intentionally) depending on the doctrinal context, I am not taking the position of a radical indeterminist. Hence, I am not (I take it) a target of Solum's criticism that: Some critical scholars suggest instead that the notion of adjudication as rule application should be replaced with "ad hoc, contextualized judgments." Expressed in traditional terms, the rule of law should be replaced by the anti-rule of pure equity. But this proposal faces a difficulty similar to that encountered by the radical notion of freedom: the implications of standardless adjudication for the transformation of society are ambiguous. Moreover, once it is conceded that the law is often practically determinate, the concomitant predictability of many legal outcomes - providing individuals the ability to plan their conduct with some assurance about its legal consequences - surely has some importance. Solum, supra note 7, at 501 (citations omitted).
339. Or former self. Wittgenstein writes his Philosophical Investigations, supra note 19, as a kind of ongoing dialogue between his new ideas and the very different views he took in his earlier Tractatus Logico-Philosophicus (D.F. Pears & B.F. McGuinness trans., 1961), first published in 1921.