Judging When You're Not Sure Which Outcome Is Best

The Legal Theory Blog highlights a law review article on a fascinating issue about which little has been written:

Much has been said in legal discourse about the challenge of empirical uncertainty—uncertainty about what has transpired or what the consequences of certain decisions might be. And the legal system has long developed methods for minimizing error in the face of uncertainty, such as the law of evidence or the use of expected utility theory. But much less has been said about a different sort of uncertainty: normative uncertainty, or the problem of how to decide when you don’t know how you ought to go about deciding.

Consider a judge who follows the debate between originalism and common law constitutionalism. She may think that one theory or the other is more likely to be the correct approach for resolving constitutional challenges. But she harbors a lingering doubt that the other side may in fact have the better approach. Our judge is uncertain, not merely as to which decision to make, but as to how to make it. Her uncertainty is normative: it is not merely about what she has most reason to do (as with empirical uncertainty), but about how to figure out what she has most reason to do.

This Article argues that normative uncertainty in the law creates a genuine practical problem for judges. It responds to theoretical skepticism about the existence of the problem, offering empirical evidence that the problem exists. And drawing on lessons from a related problem in moral philosophy, the Article illustrates that the answer to the problem is not as straightforward as might be assumed. Judges ought not simply to muddle through, or follow whichever theory they find most plausible. In exploring possible methods for minimizing normative error (on analogy to evidence or decision theory), the Article concludes by arguing that the process of reflective equilibrium, far from allowing judges to “cherry-pick,” may be justified as a way of coping with normative uncertainty.

Courtney M. Cox (Fordham University School of Law) has posted Confronting Normative Uncertainty: Deciding Cases When You Don’t Know How to Decide on SSRN.