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Abstract: Although laypeople commonly believe that the job of a judge 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 with no choice but to settle the parties’ dispute on extralegal grounds. That consensus is difficult to square with the plausible claim that deciding even close cases by coin toss is not only morally but legally objectionable. If following all the procedures prescribed by law for deciding a case fails to lead the judge to an outcome, then it is hard to see why the judge violates her legal duties if she settles the dispute by flipping a coin.
This Article offers a tentative defense of the popular idea that the judge’s job in every case is to follow the law to an outcome. The Article examines the features of the law that allegedly cause it to run out, including permissive rules, balancing tests, vagueness, ambiguity, silence, contradictions, and uncertainty. Tentatively, the Article concludes that none of these features causes the law to run out. More confidently, it maintains that the extent, if any, to which the law runs out 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.
When, if ever, the law runs out has several important implications: for judicial ethics, for the proper scope of Auer deference and other legal doctrines, and for adjacent scholarly debates such as the debate over the interpretation-construction distinction.
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