Nine takes on indeterminacy, with special emphasis on the criminal law.

• Author: Katz, Leo
• Position: The Constraint of Legal Doctrine

INTRODUCTION I. TAKE I: THE COGNITIVE THERAPY PERSPECTIVE II. TAKE 2: THE MORAL INSTINCT PERSPECTIVE III. TAKE 3: THE CORE-PENUMBRA PERSPECTIVE IV. TAKE 4: THE SOCIAL CHOICE PERSPECTIVE V. TAKE 5: THE ANALOGY PERSPECTIVE VI. TAKE 6: THE INCOMMENSURABILITY PERSPECTIVE VII. TAKE 7: THE IRRATIONALITY-OF-DISAGREEMENT PERSPECTIVE VIII. TAKE 8: THE SMALL WORLD/LARGE WORLD PERSPECTIVE IX. TAKE 9: THE RESIDUALIST PERSPECTIVE CONCLUSION INTRODUCTION

The claim that legal disputes have no determinate answer is an old one. The worry is one that assails every first-year law student at some point. Having learned to argue both sides of every case, the feeling seems inevitable.

But to assess the "skeptical thesis," which is what I will hereafter call this claim, in its strongest version, we will do well to look at a particularly vigorous presentation of it, which, in the case of criminal law, is to be found in Mark Kelman's justly famous Interpretive Constructs in the Criminal Law. (1) What caught people's imagination about Kelman's article were, I think, two features: on the one hand, there was the sheer virtuosity with which Kelman presented each side of a series of cases making up the standard criminal law curriculum; but, secondly, and probably more importantly, there were the patterns he was able to discern in the arguments being made--the recurrent themes, tropes, moves, and perspectives being employed by each side. These two aspects of the article imbued Kelman's presentation of the skeptical thesis with particular zest. The skillful presentation of each side of the argument in cases that he did not especially select for the purpose, along with the suggestion that such arguments could be cooked up, almost as by recipe, using the themes, tropes, moves, and perspectives he identified, made the conclusion that legal doctrine really does not settle any dispute, or at least any dispute of consequence, almost irresistible. Something else, most likely the whims of the judges, must be the real determinants of the outcome.

Much of the force of Kelman's argument thus comes from his particular examples. So let us take a look at several of those.

1. Kelman argues for the indeterminacy of the voluntariness requirement in criminal law, with the help of the case of Martin v. State. (2) Martin was arrested and dragged out onto the street. He was drunk and he proceeded to make a nuisance of himself. He was charged under a statute punishing "[a]ny person who, while intoxicated or drunk, appears in any public place where one or more persons are present, ... and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse." (3) Basic criminal law doctrine only permits someone to be convicted of a crime if he performed a voluntary act. (4) The defendant argued that inasmuch as he "appeared in public" by being carried there by the police, he did not perform the requisite voluntary act.5 Contrariwise, it could be of course argued that he met the voluntary act requirement inasmuch as he performed some sort of voluntary act that induced someone to call for the police to come and arrest him, and that he performed a further voluntary act when he behaved in a "boisterous or indecent" fashion once he had been brought onto the public highway. (6) Which of these perspectives will prevail depends, as Kelman sees it, on what he calls "time-framing." (7) If we focus narrowly on what was going on with the defendant at the moment that he first appeared in public, being carried there by the police, his violation of the statute looks involuntary. If we focus more broadly on the conduct preceding his arrest and on the conduct following it, it starts to look voluntary. Which of these perspectives we choose seems to Kelman an arbitrary matter. The court opted for the involuntary perspective, but, as he sees it, could just as easily have gone the other way.

2. Kelman argues for the indeterminacy of the widely accepted precept that we should eschew strict liability in the criminal law, by pointing out that whether a given crime is one of strict liability is entirely indeterminate. (8) When the head of a pharmaceutical company is held liable for letting mislabeled or contaminated drugs be sold, despite the fact that he was neither reckless nor negligent, that looks like an intolerable instance of strict liability, superficially serving neither the ends of deterrence nor retribution. That is the perspective that focuses "narrowly," as Kelman sees it, on what the defendant was doing at around the time that these defective products were being shipped. But if we consider the actions he took much before that, the decision to enter into this line of business and to run the business in the manner that he did, liability no longer seems so strict and so unfair. There are a number of actions he could have taken along the way to avert liability, including not getting into this line of business in the first place. Nor is it so clear any longer that deterrence would not be in fact improved by a regime of such very expansive liability. Even the demands of retribution might be satisfied once one focuses on the fact that, by getting into this business, the defendant voluntarily undertook the risk of being held liable if something went wrong.

3. Kelman argues that whether a defendant obtained the free and knowing consent of his partner when he had intercourse with her, or did some other action deemed impermissible without such consent, will also often be a matter of time-framing. (9) Focus on the moment at which she said yes, and the conduct looks consensual. Focus more broadly on her vacillating feelings before and after she said yes, and the actuality of her consent starts to seem more uncertain. If in addition, you pay attention to the fact that there surely are some things about the person she is having intercourse with and about the repercussions of doing so that were unknown to her, we face the problem of whether she was informed enough for the consent not to falter on that ground alone. And what of the deleterious consequences she might have feared if she did not sleep with him? It would not be hard to think of those, Kelman suggests, as constraints that render her consent not truly "free." (10)

4. Kelman argues that whether an attempt qualifies as "legally] impossible" (and hence should not result in liability) or "factually impossible" is entirely indeterminate. (11) Consider F, who goes hunting in September thinking that it is October, a month during which hunting is illegal under the governing statute. Compare L, who goes hunting in September, erroneously thinking that the governing statute bans hunting in September, whereas in fact it covers only October. One might at first glance think A is guilty of attempting to violate the hunting statute--his case being categorized as one of "factual impossibility." Similarly, one might at first glance think that L is not guilty of attempting to violate the hunting statute--his case being categorized as one of "legal impossibility." But, Kelman argues, one can just as easily argue both to be instances of factual or legal impossibility. It is not hard to think of F's mistake as being a mistake about law (is the current month one during which the law bans hunting?), or of L's mistake about what the statute prohibits as really being factual (the fact in question being to which month the law happens to refer).

5. Kelman argues that whether the so-called "concurrence doctrine" is satisfied is highly indeterminate. (12) Consider the classic case of one Cunningham, who rips a gas meter out of a basement wall of a duplex building, so as to appropriate the coins that have been deposited in it. (13) (This used to be the way to pay for gas.) By doing so, he ended up releasing toxic fumes into the adjacent unit, poisoning and nearly killing its inhabitant. (14) He was charged with poisoning his victim with malice aforethought, construed to mean poisoning her either intentionally, knowingly, or recklessly. (15) Was he guilty? The court held not, under the criminal law's concurrence doctrine, which states that if the defendant commits a crime whose mens rea does not "concur" with the actus reus he actually committed, in other words whatever crime he thought he was committing, he was not intentionally, knowingly, or recklessly committing that crime and cannot be held liable. (16) Obviously Cunningham did not actually intend to harm anyone (other than the gas company), or even think he was risking such harm. (17) He had no inkling that ripping out the gas meter would unleash such fumes.

   That is one way to look at the matter. Another way to look at it, Kelman points out, is to note that recklessness is customarily defined as the imposition of an unjustified risk, and that the risk Cunningham imposed on the inhabitant of the neighboring unit was surely unjustified, since he imposed it for the sake of stealing something. Looked at in this way, the concurrence requirement is met.

6. Kelman argues that whether someone voluntarily abandoned an attempt and therefore qualifies for the abandonment defense is indeterminate. (18) For someone's abandonment of an attempt to count as voluntary it has to occur

   under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.... [denunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. (19) What now of someone who postpones a bank robbery because he sees a policeman? It seems that...