“[D]octrine was in a shambles and predictability of result at a minimum.” Dukeminier, Property, 7th, at 1073, quoting 57 Or. L. Rev. 203, 209.
One encounters the assumption of a connection between clear doctrine and predictability everywhere. But has it been proved, or studied? It doesn’t seem intuitive. We don’t read White House press releases to predict what the President is going to do. We read newspaper articles and works of political science that are based on many more sources. So why would we suppose that a clear statement from a court press release (that is, a judicial opinion) is a useful predictor of anything?
Predictability would seem to have to do with information about the judiciary qua institution, who’s in it, the forces acting upon them, the views of peers, the media, the subtle pressure of interest groups, zeitgeist, the judges’ ambitions and fears, the way daddy treated them during adolescence, and the like, not merely the judiciary’s own self-serving statements about how it will behave in future.
And the same goes with people, too, doesn’t it? You’re always the last to know when you’re in love.