The Uncertain Judge

74 Pages Posted: 1 Mar 2021 Last revised: 8 May 2023

See all articles by Courtney M. Cox

Courtney M. Cox

Fordham University School of Law

Date Written: February 28, 2021

Abstract

The intellectually honest judge faces a very serious problem about which little has been said. It is this: What should a judge do when she knows all the relevant facts, laws, and theories of adjudication, but still remains uncertain about what she ought to do? Such occasions will arise, for whatever her preferred theory about how she ought to decide a given case—what I will call her preferred “jurisprudence”—she may harbor lingering doubts that a competing jurisprudence is correct instead. And sometimes, these competing jurisprudences provide conflicting guidance. When that happens, what should she do?

Drawing on emerging debates in moral theory, I call this problem the problem of “normative uncertainty.” It is often overlooked because the common answer is that the judge should just swallow her doubts and do what she thinks is right. But that obvious solution turns out to be wrong. Sometimes, she should not follow her preferred jurisprudence, but do what a different jurisprudence suggests instead.

Developing a full solution will be difficult, and I do not attempt one here. Instead, I sketch a solution based on the familiar example of expected utility and use it to illustrate why developing a solution to normative uncertainty is considerably more difficult than developing solutions to other kinds of uncertainty. By the end, I hope to have convinced you only that there is a problem and that it is hard. But even without a solution, just seeing the problem will change how you think about judging.

Keywords: jurisprudence, philosophy, uncertainty, normativity, legal reasoning

Suggested Citation

Cox, Courtney M., The Uncertain Judge (February 28, 2021). Fordham Law Legal Studies Research Paper No. 3794982, University of Chicago Law Review, Vol. 90, No. 3 (2023), Available at SSRN: https://ssrn.com/abstract=3794982 or http://dx.doi.org/10.2139/ssrn.3794982

Courtney M. Cox (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
910
Abstract Views
4,250
Rank
47,936
PlumX Metrics