About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

35 U. Rich. L. Rev. 55 (2001-2002)
A Pragmatic Justification of the Judicial Hunch

handle is hein.journals/urich35 and id is 73 raw text is: A PRAGMATIC JUSTIFICATION OF THE JUDICIAL
HUNCH
Mark C. Modak-Truran*
I. INTRODUCTION
Judges currently face a daunting task. On the one hand, they
are increasingly aware of the indeterminacy of the law, while on
the other hand, they face an explosion of fact. Judges are floating
on shaky legal timbers in a sea of documents, deposition tran-
scripts, affidavits, oral courtroom testimony, and expert opinions.
The explosion of fact alone presents monumental problems for de-
ciding cases without unduly simplifying or reducing this factual
complexity. For example, both federal and state judges are im-
plementing case management systems to deal with their crushing
case loads and the increasing complexity of their cases. In addi-
tion, there appears to be an overwhelming consensus that the law
is indeterminate, but there is little consensus as to what that
means.' For instance, extreme-radical deconstructionists such as
Anthony D'Amato have argued that even the constitutional re-
quirement that the President be thirty-five years of age is inde-
•  Assistant Professor of Law, Mississippi College School of Law. B.A., Gustavus Ad-
olphus College; J.D., Northwestern University; A-M., Ph.D. Candidate, University of Chi-
cago. I would like to thank David E. Van Zandt and Matthew S. Steffey for helpful com-
ments on this article. I also want to thank Mississippi College for supporting my work on
this article and Jeff Carson for his research assistance.
1. See, e.g., Ken Kress, Legal Indeterminacy and Legitimacy, in LEGAL
HERMENEUTICS: HISTORY, THEORY, AND PRACTICE 201 (Gregory Leyh ed., 1992). Ken
Kress notes that
versions of indeterminacy differ according to whether they claim that the
court has complete discretion to achieve any outcome at all (execute the
plaintiff who brings suit to quiet title to his cabin and surrounding property
in the Rocky Mountains) or rather has a limited choice among a few options
(hold for defendant or plaintiff within a limited range of monetary damages
or other remedies), or some position in between.
Id.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most