A Pragmatic Justification of the Judicial Hunch

Judges currently face a daunting task. On the one hand, they are increasingly aware of the indeterminacy of the law, while on the other hand, they face an explosion of fact. Judges are floating on shaky legal timbers in a sea of documents, deposition transcripts, affidavits, oral courtroom testimony, and expert opinions. The explosion of fact alone presents monumental problems for deciding cases without unduly simplifying or reducing this factual complexity.

For example, both federal and state judges are implementing case management systems to deal with their crushing case loads and the increasing complexity of their cases. In addition, there appears to be an overwhelming consensus that the law is indeterminate, but there is little consensus as to what that means. For instance, extreme-radical deconstructionists such as Anthony D'Amato have argued that even the constitutional re- quirement that the President be thirty-five years of age is indeterminate. Furthermore, even contemporary legal formalists, such as Ernest Weinrib, claim that "[n]othing about formalism precludes indeterminacy.