Indeterminacy and Uncertainty in Legal Education

Indeterminacy is an inevitable feature of law. While there is reason to value certainty in the law and its application, there are certain advantages to indeterminacy. Although this area has been considered at length by legal philosophers, there has been less scrutiny of the role played by indeterminacy and uncertainty within legal education. This paper makes two observations which point to a conclusion. First, the use of indeterminacy and uncertainty are key assessment tools in testing deeper learning of the subject matter and question technique (especially in problem scenarios). Second, when learning outcomes refer to terms such as 'analysis' and 'application', that is (to a significant extent) about the student's ability to respond to and exploit instances of indeterminacy or uncertainty. The conclusion: if learning outcomes and assessments are concerned with responses to indeterminacy in the law or uncertainty as to its application, those who teach law should be (more) strategic in the ways they teach indeterminacy; in other words, a more conscious alignment of teaching with learning outcomes and assessment. This is, moreover, a key legal skill: lawyers should be able to identify instances of indeterminacy or uncertainty and exploit them or close them down as need be.