Science and Technology Law Review

The Columbia SCIENCE AND TECHNOLOGY LAW REVIEW www.stlr.org THE VARIABLE DETERMINACY THESIS Harry Surden1 This Article proposes a novel technique for characterizing the relative determinacy of legal decision-making. I begin with the observation that the determinacy of legal outcomes varies from context to context within the law. To augment this intuition, I develop a theoretical model of determinate legal decision-making. This model aims to capture the essential features that are typically associated with the concept of legal determinacy. I then argue that we can use such an idealized model as a standard for expressing the relative determinacy or indeterminacy of decision-making in actual, observed legal contexts. From a legal theory standpoint, this approach – separating determinacy and indeterminacy into their constituent conceptual elements – helps us to more rigorously define these theoretical ideas. Ultimately, from a practical standpoint, I assert that this framework assists in understanding why legal outcomes in certain contexts are determinate enough to be amenable to resolution by computers. 1 Associate Professor, University of Colorado Law School. B.A. Cornell University; J.D. Stanford University. Many thanks to Stanford Law School for supporting this work through my fellowship with the Stanford Center for Computers and Law, as well as to the generous support of the University of Colorado Law School. I am grateful for the ideas and challenges of Michael Genesereth from the Stanford Computer Science Department whose tireless efforts inspired this work. Many thanks to Paul Ohm, Phil Weiser, Pierre Schlag, Andrew Schwartz, Alexia Brunet, Vic Fleischer, and the rest of my excellent colleagues at the University of Colorado Law School for their input. Many thanks also to Seema Shah, Andrew Coan, and Viva Moffat for their very helpful comments. Finally, thanks to Ashley Boothby, Molly Hocker and Blake Reid for their excellent research assistance. Cite as http://www.stlr.org/cite.cgi?volume=12&article=1 This work is made available under the Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License Vol. XII The Columbia Science and Technology Law Review 2011 “[T]he … conclusions [of the law] … are not so clear, constant, and determinate, as conclusions in logic or mathematics are….” 2 Lord Chief Justice Matthew Hale (1668) I. INTRODUCTION The determinacy of legal outcomes varies throughout the law.3 Under some factual scenarios liability and other legal determinations appear tolerably constrained.4 In other contexts, legal outcomes are notoriously unpredictable.5 Early debates within the legal literature considered whether legal outcomes were largely determinate or 6 indeterminate within American law generally. More recent commentators have 2 Matthew Hale, Preface to Rolle’s Abridgement (1668), in Francis Hargrave, Collectanea juridica : Consisting of Tracts Relative to the Law & Constitution of England, 273-275 (Clarke and Sons 1840). 3 I use “determinacy” as synonymous with “constrained predictability” of legal outcomes. I justify such a usage in Part III. 4 Drivers proceeding below the speed limit can justifiably consider themselves compliant with vehicular speeding laws. For the proposition that meeting the speed limit is generally considered prima facie compliance with the vehicular speed limit laws, see, e.g., Safe Roads, Happy Visits, The News-Star, Apr. 14, 2008, at B3, available at 2008 WLNR 27264770 (“[W]e don’t hear from those same folks is that the police pull them over, ticket or fine them if they obey the posted speed limit.”); Clay Evans, Not About the Revenue. Want to Avoid a Ticket? Don't Speed, Boulder Daily Camera, Dec. 9, 2008, at A6, available at 2008 WLNR 23577980; New York State Department of Motor Vehicles, Speeding & Speed Limits Index & Overview, http://www.nysgtsc.state.ny.us/spee-ndx.htm#slower (last visited Oct. 1, 2010) (“Always drive at or below the speed limit. If you choose to follow the crowd and travel at the same speed as everyone else, you could receive a ticket for speeding.”). But see companion rule NYS Vehicle and Traffic Law section 1180(a) for an exception. The point is that determinacy in this context is not absolute, but relatively more determinate than other contexts.is not absolute, but relatively more determinate than other contexts. 5 Many decisions of Constitutional law are notoriously difficult to predict, even for experts grappling with the same facts. See Andrew D. Martin et al., Competing Approaches to Predicting Supreme Court Decision Making, 2 Perspectives on Politics 761-68 (2004) (In one study, experts on constitutional law predicted outcomes of Supreme Court decisions at a 59% success rate, only a little better than chance. A probabilistic computer model bested the experts with a 75% success rate.). 6 See Christopher Columbus Langdell, A Summary of the Law of Contracts 20-21 (2d ed. 1880) for a famous view of legal decisions as primarily formally derived. By contrast, see Jerome Frank, What Courts Do In Fact, 26 U. Ill. L. Rev. 645, 645-658 (1932). Frank and other realists have been caricatured as holding the view that legal decisions can be so indeterminate as to depend upon what a “judge had for breakfast.” See, e.g., Ronald Dworkin, Law’s Empire 36 (1986). For the assertion that such a view from the legal realists was largely apocryphal rather 2 Vol. XII The Columbia Science and Technology Law Review 2011 recognized the false dichotomy in such an approach.7 It makes little sense to generalize about the overall determinacy of legal outcomes in the law. Rather, the determinacy of legal outcomes differs depending upon context. That some legal outcomes do appear reasonably ex ante8 determinate raises an interesting question: Are legal issues ever determinate enough to allow computers to analyze them? This prospect has long been alluring to intellectual inquiry.9 As early as the seventeenth century, Gottfried Leibniz, the great mathematician and co-inventor of calculus, speculated that legal liability might be derivable through calculation.10 Since that time, this notion – that legal determinations might be “calculable” and perhaps automatable – has continued to intrigue scholars in the computer science domain.11 Legal academics – to the extent they have addressed this issue – have tended to view the possibility of automated legal analysis with skepticism.12 Scholars from the legal domain tend to insist upon a nuanced view of legal analysis. In this conception, legal reasoning is too imbued with uncertainty, ambiguity, judgment, and discretion to permit computerized assessment. This literature’s common theme is that even if computers were technically able to mimic legal decision-making in a mechanical fashion than representative, see Brian Leiter, Positivism, Formalism, Realism, 99 Colum. L. Rev. 1138, 1148 (1999). See also Anthony D’Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 U. Miami L. Rev. 513, 513-20 (1989). 7 Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470-73 (1987). 8 Here, ex ante refers to a liability determination by a non-official legal actor, such as an attorney or layperson, before an authoritative legal decision-maker – such as a judge or administrative official – makes a binding determination about liability. 9 See, e.g., Virginia J. Wise, Book Review: Modeling Legal Argument: Reasoning with Cases and Hypotheticals, by Kevin D. Ashley, 5 Harv. J.L. & Tech. 245 (1991); Susan Haack, On Logic in the Law: ‘Something, But Not All’, 20 Ratio Juris 1, 29 (2007). 10 See Giovanni Sartor, A Treatise of Legal Philosophy and General Jurisprudence, Vol. 5: Legal Reasoning 389-90 (Enrico Pattaro ed., Springer 2005). Sir Matthew Hale, the Chief Justice of England, and Leibniz’s 17th century contemporary, was skeptical of such an idea. Id. 11 For examples of computer science articles studying whether aspects of law might be computable see Jeffrey Meldman, A Structural Model for Computer-Aided Legal Analysis, 6 Rutgers Computer & Tech. L.J. 27 (1977); Jon Bing, Legal Norms, Discretionary Rules, and Computer Programs, in Computer Science and Law (Bryan Niblett ed., 1980); Guido Governatori & Antonino Rotolo, An Algorithm for Business Process Compliance, in Legal Knowledge and Information Systems: Jurix 2008, 186 (2008); Ashley, supra note 8; Adam Wyner & Teveor Bench-Capon, Argument Schemes for Legal Case-based Reasoning, in Legal Knowledge and Information Systems: Jurix 2007, 139 (2007). 12 Kevin Ashley et al., Symposium: Legal Reasoning and Artificial Intelligence: How Computers Think Like Lawyers, 8 U. Chi. L. Sch. Roundtable 1, 19 (2001) (Cass Sunstein argues that, “[A]t the present state of the art, artificial intelligence cannot engage in analogical reasoning or legal reasoning.”). 3 Vol. XII The Columbia Science and Technology Law Review 2011 they would necessarily miss the subtle institutional, value-based, experiential, justice- oriented, and public policy dimensions that are the heart of lawyerly analysis.13 It is interesting to note that, notwithstanding this view, computers are currently used to derive legal conclusions in some contexts. The widespread adoption of income tax preparation software such as TurboTax provides a familiar counter-example to the view of law as inherently unsuited to automated legal analysis. Such software contains a representation of the personal income tax code that has been formulated in a way that computers can understand. Supplied

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