Does the Law Ever Run Out?

Charles F. Capps*

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.

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© 2025 Charles F. Capps. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor of Law, Arizona State University Sandra Day O’Connor College of Law. Thanks to Joel Alicea, Emad Atiq, Jack Balkin, Will Baude, Dan Bodanksy, Justice Clint Bolick, Sam Bray, Ellie Bublick, Shea Daley Burdette, Shelly Capps, Alma Diamond, Gregory Dickinson, Brenner Fissell, Chad Flanders, Rick Garnett, James Gillespie, Jonathan Green, Ben Johnson, Will Kamin, Josh Kaufman, Julian Ku, Robert Leider, Brian Leiter, Tyler Lindley, John McGinnis, Branton Nestor, Joel Nolette, Jide Nzelibe, Lee Otis, Micah Quigley, Joseph Simmons, Owen Smitherman, Mila Sohoni, Larry Solum, Connor Suozzo, Brian Tamanaha, Lorianne Updike Toler, Nina Varsava, Bill Watson, Lael Weinberger, Jim Weinstein, and all who attended presentations of drafts of this Article at the ASU Faculty Colloquium, the Georgetown Center for the Constitution Research Fellows Conference, and the University of San Diego Originalism Works-in-Progress Conference, for helpful comments and discussions. Thanks also to the editors of the Notre Dame Law Review for their corrections and suggestions.