The received wisdom about adjudication is that all a conscientious judge needs to decide a dispute is a sound grasp of the facts of the case, sufficient knowledge of the applicable legal materials, and a theory of adjudication to go with them. In The Uncertain Judge, Courtney Cox argues that this received wisdom is incomplete. At least in some instances, she claims, (i) judges might be uncertain about whether their preferred theory of adjudication is correct, and (ii) different theories of adjudication would lead to inconsistent outcomes. In such a situation, judges face a problem of normative uncertainty.
This problem, as Professor Cox argues, is a “meta-problem.” As long as we believe judges can be coherently criticized in certain ways, the problem is real, whatever theory of adjudication or jurisprudential view we think is correct. The problem, as she writes, “floats on top” of first-order jurisprudential debates. (P. 3.) And, as she argues, in the circumstances of normative uncertainty, the judge cannot simply stick to their guns and insist on their preferred theory, precisely because they are aware of the possibility that it might be the wrong theory.
The upshot of the problem is that, sometimes, it might be irrational for the judge to follow their preferred theory. A conscientious yet uncertain judge should, in other words, take into account the likelihood of different theories being right and the cost of error—under each such theory—in the specific case. Given these considerations, for instance, a conscientious yet uncertain textualist might be rationally required to decide like a purposivist.
The implication of Cox’s argument is that the evaluation of judicial decisions occupies at least two distinct levels: the jurisprudential and the rational. (P. 7.) Thus, we can either criticize a judge for not doing what, as a matter of law, they should have done, or we can criticize them for not doing what, as rational beings acting in conditions of uncertainty, they should have done. These two oughts—the legal and the rational—can come apart, as she illustrates with her analysis of Google v. Oracle.
The problem, as Cox argues, is somewhat similar to the parallel problem of uncertainty in the moral domain. She notes, however, that there is an important difference that makes the legal case much more complex: judges do not make single, one-off particular decisions. They have to decide by taking into account previous decisions and the impact of their decision on future cases. (P. 11.)
A key notion in Cox’s argument is the idea of a judge’s “jurisprudence.” A judge’s jurisprudence is their overall theory of adjudication: it will include, as Cox writes:
Theories and beliefs about constitutional interpretation and construction; the appropriate method of statutory construction; the importance and application of stare decisis; the scope of and limits on judicial discretion; the relevance of political, moral, or prudential considerations; methods for resolving legal uncertainty generated by conflicts of law, indeterminacy, or changed circumstances; appropriate aims in judging, and, as relevant, the nature of law itself. (P. 15.)
It turns out that no matter how complete and articulated a jurisprudence might be (and, as Cox notes, in many cases it’s plausible to imagine that most judges have only an incomplete, perhaps inchoate jurisprudence), the problem of normative uncertainty is theoretically inescapable. In other words, it might be empirically more or less rare, but its existence is always theoretically possible.
Professor Cox’s paper introduces a new and important problem into legal philosophy. The article also makes a sophisticated and compelling case that the problem exists and is important, deliberately avoiding offering a fully worked-out solution. I think this is the right strategy, given the complexity of the problem. Still, Professor Cox suggests one model for what a solution might look like: an approach that attempts to maximize the expected correctness of judicial outcomes, built on the basis of an analogy with expected utility theory. As Cox notes, however, such a model faces an important problem given the difficulty of inter-theoretic comparison.
There are, also, multiple future avenues for theoretical development that Professor Cox opens up. The first group of potential further questions includes further debate about whether the problem of legal normative uncertainty in fact exists; its relationship to moral uncertainty; its connections to questions about judicial duty; and whether the problem does, in fact, exist under any jurisprudential view, or whether some views might just transform the issue into a problem of first-order moral uncertainty. The second avenue for further inquiry is, as she already suggests, the development of mechanisms for coping with normative uncertainty in legal decision-making.
There is a third potential development too, into research and reflection on the cultural and sociological conditions that foster normative uncertainty, as an empirical matter, in particular legal systems. In this aspect, it seems to me that, if Professor Cox is right about the theoretical possibility of normative uncertainty, some peculiarities of the American legal system—with its focus on individual judges and styles of judging, the role of political and ideological considerations in judicial appointment, and the lack of a bureaucratized and centralized judicial training and selection regime—make it particularly apt for a high degree of normative uncertainty. This, incidentally, suggests another potential avenue for further research: perhaps the (partial) solutions to normative uncertainty are not just individual decision protocols, as Professor Cox’s example suggests, but also institutional mechanisms and cultural practices that reduce the significance of judges’ personal idiosyncrasies—and therefore that reduce uncertainty by restricting the choice set of jurisprudences.
In sum, we seem to have a potential problem. At the least, Professor Cox has given us reason to wonder whether the problem is indeed there and how to cope with it. And she has done so through a thoughtful and carefully constructed argument.
