underdeterminacy

On the other hand, it could simple be a result of true indeterminacy/underdeterminacy in the law.

The Volokh Conspiracy » The Myth of an Expert Consensus on the Constitutionality of the Health Care Mandate Revisited 2010

On the other hand, it could simple be a result of true indeterminacy/underdeterminacy in the law.

The Volokh Conspiracy » The Myth of an Expert Consensus on the Constitutionality of the Health Care Mandate Revisited 2010

To have an even halfway-complete legal matrix, it's become apparent to me as time has gone by, you can start with textualism, but you have to add originalism, you have to have a view on underdeterminacy, you have to add a view on stare decisis, you have to add a view on construction which is a very different business to interpretation, you probably ought to add formalism.

Rudy's running... and talking about abortion. Ann Althouse 2007

Bork and Scalia, for example, differ vastly on underdeterminacy; I'm on Scalia's side, but I think Bork's view, as a matter of practical ajudication, is little short of judicial activism, on a theoretical level, it's not an absurd position.

Finally, an answer to the single most important question about this blog! Ann Althouse 2006

Constitution was something that probably hadn't even been considered in 1789 - hence, discussion of stare decisis and originalism inevitably involves discussion of originalism and underdeterminacy.

"The proceedings seemed more like a medical school seminar than an appellate argument." Ann Althouse 2006

And sure enough, originalists have largely left underdeterminacy and what to do with it an undertheorized area.

"That is not Michigan," elites exclaim, looking at how Michigan citizens voted. Ann Althouse 2006