Does the Law Ever Run Out?

Although laypeople commonly believe that a judge’s job is to decide every case as the law requires, a broad consensus exists among legal scholars that the law not infrequently “runs out,” leaving the judge to decide the case on extralegal grounds. This Article subjects that consensus to critical scrutiny. Tentatively, the Article concludes that none of the alleged sources of indeterminacy in the law—including permissive rules, balancing tests, vagueness, ambiguity, silence, contradictions, and uncertainty—actually causes the law to run out. More confidently, the Article maintains that the extent to which the law runs out, if it does at all, depends on difficult issues in the philosophy of law, language, and value—issues that parties to the consensus that the law runs out in a significant range of cases do not appear to have worked through to resolution.

Casting doubt on the notion that the law runs out has important implications for judicial ethics, the scope of Auer deference and other legal doctrines, and adjacent scholarly debates such as the debate over the interpretation-construction distinction.