10 April 2005

A Definite Hypothetical Maybe

Professor Solum remarked today on the so-called "indeterminacy problem" in law. As he puts it,

The indeterminacy debate is about the claim that the law does not constrain judicial decisions. Put differently, the claim is that all cases are hard cases and that there are no easy cases. The strongest version of the claim is the notion that any result in any legal dispute can be justified as the legally correct outcome, but the thesis can be modified or weakened in various ways.

"Legal Theory Lexicon: Indeterminacy" (10 Apr 2005). I think Professor Solum's short summary is an excellent introduction to the problem of indeterminacy—within a nonquantized reference frame. The reference frame problem, though, is where the whole theory gets into serious trouble.

Professor Solum notes that it's easy to disprove the strongest version of the indeterminacy hypothesis, through the use of an "easy case"—as long as all legal principles must apply equally across the entire domain of legal problems. This is not quite the same thing as "the law is a seamless web," although methods of reasoning (etc.) will certainly cause a legal solution in subdomain x to resemble, at some level of abstraction, a legal solution in subdomain y. The whole indeterminacy issues founders, though, on the distinction between necessary and sufficient conditions. A civil procedure problem might make this more apparent; consider, for the sake of you poor first-years reading this blawg (and if any are, you're probably really confused already!), something concerning not a substantive legal rule, but a domain-defining rule: personal jurisdiction.

One of the foundational inquiries in the "rule of law" at virtually any level of abstraction is the right of a particular court to hear a dispute concerning a particular defendant. (Note that subject-matter jurisdiction presents a parallel, but slightly different, problem.) We tend to study this with certain simplifying assumptions, such as:

  • The court in question has a defined place in a hierarchy of more than one court system
  • There probably does exist some court, somewhere, that would be the proper court to hear a given dispute; the question is whether this court is the (or a) proper court
  • The decision of this court, whether proper or not, will somehow have an impact on the parties
  • Other courts and alternate means of dispute resolution will at least think about deferring to a final judgment from this court until that final judgment is challenged as not just wrong, but somehow improper

and so on. What this tells us, in turn, is that personal jurisdiction is a necessary, but not a sufficient, condition for a given court to resolve a given dispute. We have to worry about subject-matter jurisdiction; default; statutes of limitation; statutes of repose; venue; availability of requested remedy; and then—only then—about the facts (and, of course, rules of evidence) and the substantive law with which one must grapple in order to reach a decision.

The difficulty with the case method is that it almost always involves treating a dependent variable as if it is an independent variable. One of the classic civil-procedure instances involves "tag jurisdiction," epitomized by Burnham v. Superior Court, 495 U.S. 604 (1990). The syllabus tells us:

During a trip to California to conduct business and visit his children, petitioner Burnham, a New Jersey resident, was served with a California court summons and his estranged wife's divorce petition. The California Superior Court denied his motion to quash the service of process, and the State Court of Appeal denied mandamus relief, rejecting his contention that the Due Process Clause of the Fourteenth Amendment prohibited California courts from asserting jurisdiction over him because he lacked "minimum contacts" with the State. The latter court held it to be a valid predicate for in personam jurisdiction that he was personally served while present in the forum State.

The Court's reasoning is incredibly fractured, but on some set of grounds or another all nine justices agreed that personal jurisdiction was proper. This essentially treats the father's presence in the state as an independent variable: That his presence was not influenced by his belief that he would not be subject to jurisdiction in California merely for being there on business and visiting his children.[note 1] Let's consider the potential case Burnham' v. Superior Court, which arises well after Burnham itself. In this instance, the lawyer for Burnham' will (if at all competent) tell Burnham' about the result in Burnham, which will (or should) influence any decision Burnham' takes to visit California. This leads then to the question of how Mrs Burnham' (presuming she took her husband's name at marriage) can get personal jurisdiction over Mr Burnham' to reach the same result. In other words, personal jurisdiction is a dependent variable, not an independent variable; it is factually bound both as to the instant case and to other cases that might rely upon the instant case to provide a rule of decision.

What this really means is that the answer to the indeterminacy problem is indeterminate. It depends upon the boundary conditions we have established. The bare facts in Burnham don't by any means reach all of the circumstances that might be presented by Burnham': An improperly drawn boundary so that what is in Nevada is "really" in California; an aircraft flying over California, or (worse yet) that crashes in California on a flight between Reno and Hawaii; emergency transfer of Burnham' to California for life-saving medical care that is available nowhere else; kidnapping from New Jersey; assignment to a military base in California[note 2]; and so on. Further, the decision fails to grapple with whose perspective properly provides the "fairness" part of the "fundamental fairness" doctrine that is supposed to underly every inquiry into personal jurisdiction.

There is also a logical minefield underneath the indeterminacy problem: the inductive fallacy. By its nature, the common law is inductive. However, inductive reasoning depends upon the accuracy of comparing the instant dispute to the purported paradigmatic matter, which itself certainly was not produced under nice, clean, controlled, reproducable laboratory conditions. However, this is not a particularly popular view in studying law, as it implies that law may be an imperfect instrument for resolving even facially legal disputes—law is itself indeterminate, even if some of its individual rules declare otherwise. The circularity of the reasoning necessary to consider the problem itself indicates that no simple (or simplistic) answer is likely to be correct.

  1. Although the opinion is far from clear on the issue, because it's "not relevant" to the purportedly abstract civil-procedure argument, the jurisdiction decision is essentially outcome-determinative. California is a community-property state; New Jersey is not. That means that the "richer party" wants New Jersey substantive law to apply, while the "poorer party" wants California substantive law to apply (because under a community property system, half of everything belongs to each party). Thus, although the case is stated in very abstract, personal-jurisdiction terms, the result is essentially outcome-determinative, or at least outcome-directive.
  2. Technically, a military base is outside the boundary of every state. That does not stop military personnel from being involved in some truly ugly custody and child-support battles, nor does it really provide any guidance to a commanding officer when he gets a letter from a Congressman demanding that the officer directly enforce a judgment against Sgt [name withheld] when Sgt [name withheld] first heard about the proceedings in question through the Congressman's letter… and no, that's not a hypothetical. Care to guess who might have been the CO in question?