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71 Calif. L. Rev. 1 (1983)
Legal Uncertainty

handle is hein.journals/calr71 and id is 13 raw text is: California Law Review VOL. 71 JANUARY 1983 No. 1 Legal Uncertainty Anthony D'Amatot Legal certainty decreases over time. Rules and principles of law become more and more uncertain in content and in application because legal systems are biased in favor of unravelling those rules and princi- ples. In Part I of this Article, I attempt to show what these biases are, and why commentators who have argued that the law tends toward certainty are wrong. Part II describes various attempts which have been made at restoring certainty, and why these attempts have gener- ally not worked. My conclusion is that these proposals are at best hold- ing actions, and that the tendency toward increasing uncertainty in the law is inexorable. Several definitions are necessary at the outset. By law, I mean not some metaphysical abstraction, but rather what the law means to the average person: a prediction of official behavioral reaction to what she plans to do (or avoid doing).' Thus, if a potential litigant, Irma, Copyright © 1983 Anthony D'Amato. t Professor of Law, Northwestern University School of Law. This Article is a product of the Senior Research Program at Northwestern. John Thorne, Class of 1981 and presently an associate in the firm of Kirkland & Ellis in Chicago, was the student researcher on the project. Mr. Thorne's contribution was so significant as to deserve credit as coauthor of this Article. How- ever, Mr. Thorne declined an offer to be so listed. Professor Ian Macneil graciously commented on an early draft of the Article. Any errors are the sole responsibility of the author. 1. Law, according to Holmes, consists of prophecies of what the courts will do in fact. Holmes, The Path ofthe Law, 10 HARV. L. REV. 457, 461 (1897). Almost all of what we think of and respond to as law comes in the way of predictions of what a court or other official body would do if presented with some dispute. An individual's conduct is shaped or affected by a rule exactly according to her (or her lawyer's) perception of the chances that she will be officially sanctioned on the ground that she violated the rule. I talk of official sanctions because I am discussing here only actions with legal consequences. See generally D'Amato, The Limits of Legal Realism, 87 YALE LJ. 468, 481-82 (1978). One theoretical objection to viewing law as a predic- tion of a judge's behavior has been the idea that such a view would offer no standard for the judge himself. Thus, such a definition of law may be considered to be question-begging. This theoreti- cal objection is arguably invalid because it is possible to see the judge's role as a post hoc fulfill- ment of the best lawyer's prediction of what a judge would decide. See id. at 495-98. This realist definition, see id. at 468-72, may seem to be too narrow. Law, in a broad sense,

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