academia
What makes a legal question &quot;hard&quot;?
<p>When someone says another person has a brilliant legal mind, I assume that means the person is well suited for hard legal questions. I think mathematicians and logicians have a systematic way of determining how hard their questions are.  Is there a similar way of determining how hard a legal question is?</p>
<p>From Computational Complexity Theory (Wikipedia):</p>
<blockquote>
<p><strong>NP-hardness</strong> (non-deterministic polynomial-time hard), in computational complexity theory, is a class of problems that are, informally, &quot;at least as hard as the hardest problems in NP&quot;. More precisely, a problem H is NP-hard when every problem L in NP can be reduced in polynomial time to H.[1]:80 As a consequence, finding a polynomial algorithm to solve any NP-hard problem would give polynomial algorithms for all the problems in NP, which is unlikely as many of them are considered hard.[2]</p>
<p>A common mistake is thinking that the NP in &quot;NP-hard&quot; stands for &quot;non-polynomial&quot;. Although it is widely suspected that there are no polynomial-time algorithms for NP-hard problems, this has never been proven. Moreover, the class NP also contains all problems which can be solved in polynomial time.</p>
</blockquote>

<p>Questions of law can be hard when (among other things):</p>

<ul>
<li>the fact pattern has not been seen before (<em><a href="http://www.supremecourt.gov/opinions/12pdf/11-796_c07d.pdf" rel="nofollow">Bowman v. Monsanto</a></em>),</li>
<li>there is ambiguity in a statute (<em><a href="http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf" rel="nofollow">King v. Burwell</a></em>),</li>
<li>there is conflict between a statute and the constitution (<em><a href="http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf" rel="nofollow">United States v. Windsor</a></em>), or</li>
<li>there is apparently conflicting precedent (<em><a href="http://www.scotusblog.com/case-files/cases/campbell-ewald-company-v-gomez/" rel="nofollow">Campbell Ewald Co. v. Gomez</a></em>).</li>
</ul>

<p>There are many and innumermable reasons that a certain legal question might be considered "hard".  The previous answer lists some of the more definitely-relevant ones especially "conflicting precedent"; that's often a situation that's particularly fruitful for giving rise to cases that are called hard.</p>

<p>But...there's kind of a big problem underlying this whole endeavor: the question of whether a case is "hard" is very often is a contentious battle between legal scholars/observers/commentators--and more importantly, between judges--<em>itself</em>. There really can be no firm, decisive set of criteria for dissecting whether a case is hard or not, because, generally speaking, to say "This is a hard case to me." usually means "In my mind, the question of which side should prevail in this case is a close call." And the sides can be close in a given jurist's head in a certain set of circumstances due to .... well, any combination of many, many, many factors.</p>

<p>In sum, in law even the question of what it means for a case to be "hard" is really pretty much impossibly hard. :)  </p>
