In American law, underdeterminacy is a concept particularly relevant to

originalism Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to judicial activism ...

. It is distinct from ''indeterminacy''. The problem arises because even having established the original meaning of a clause of the Constitution, "''knowing the meaning of these words only takes us so far in resolving current cases and controversies. Due either to ambiguity or vagueness, the original meaning of the text may not always determine a unique rule of law to be applied to a particular case or controversy. While not ''indeterminate'', the original meaning can be ''underdeterminate" ( R. Barnett,
The original meaning of the Commerce Clause
', text accompanying note 37). Underdeterminacy is crucial to originalism, because it creates an important question of what an originalist judge should do in cases of underdeterminacy; different scholars and judges have proposed various alternatives, ranging from using tradition to fill in the gaps (

Scalia Antonin Gregory Scalia (March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual an ...

) to disempowering the judge to rule ( Bork, Strang).

References

* L.B. Solum, ''On the Indeterminacy Crisis: Critiquing Critical Dogma'', 54 U. Chi. L. Rev. 462, 473 (1987) (distinguishing between indeterminacy and underdeterminacy). * L. Strang, ''An Originalist Theory of Precedent''
36 New Mex. L. Rev _
(2006). American legal terminology Philosophy of law {{law-philo-stub