Prof. Kiel Brennan-Marquez Guest-Blogging About Very Broad Laws

|The Volokh Conspiracy |

I'm delighted to report that Prof. Kiel Brennan-Marquez (University of Connecticut School of Law) has agreed to guest-blog about his new article, Very Broad Laws; I saw it on SSRN, and thought our readers would find it very interesting. Here's the abstract:

Very broad laws offend due process. Like linguistic indeterminacy, extreme breadth deprives ordinary people of fair notice about how the legal system is likely to respond to their conduct. Accordingly, the Fifth and Fourteenth Amendments, echoing ancient rule-of-law principles, limit legislative authority to enact broad laws. The limits are forgiving. Just as it would be unwise (and perhaps impossible) to banish all vagueness and ambiguity from law, so legislators have considerable latitude to draft broadly. But limits do exist — and they should be enforced.

The problem has not been lost on courts. But their response, to date, has been to treat breadth as a species of linguistic indeterminacy, confusing analogy for identity. This strategy has caused doctrine to stagnate; it should be abandoned.

Instead, courts should distinguish indeterminacy and breadth as phenomena, and they should combat the latter directly, with tools forged in the image of the rule of lenity, on the one hand, and the void-for-vagueness doctrine, on the other. Using the first, the "rule of narrowness," courts can fashion extra-textual limits to curb the reach of broad statutes, allowing them to survive in modified form. Using the second, the "void-for-breadth" doctrine, courts can invalidate statutes (or parts of statutes) as facially overbroad.

I much look forward to Prof. Brennan-Marquez's visit.

NEXT: "Some Friendly Advice To New Law Students"

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  1. I’m a great fan of invalidating laws for vagueness. The problem with lenity is it only comes into play after one has been prosecuted, and as we saw in Abramski v. United States, lenity and 50 cents usually won’t get you a cup of coffee.

    The problem with courts crafting “extra-textual” limits is it turns judges into legislatures. Erasing the separation of powers, as history has shown us time and time again, is always a mistake.

    Law enforcement in the United States and during our colonial period was conducted by private persons. There was no such thing as district attorneys let alone their having a monopoly on criminal prosecutions. If a private person brought a criminal prosecution and failed to prove his case then the penalties were severe. If a district attorney (or city prosecutor, or attorney general, etc) fails to prove his case today then he has absolute immunity.

    The State of California has had a monopoly on criminal prosecutions for nearly 70 years now and just look at the mess our criminal justice system is in.

    If you want to improve the legal system then restore private criminal prosecutions and eliminate absolute immunity for all prosecutors and judges and eliminate qualified immunity for police.

    And while you are at it, remove the shield of absolute immunity from legislators. They will enact fewer laws and will have a very strong incentive to write very narrow laws.

    Next topic: “Fixing our broken jury system.”

  2. I’ll bite: why would anyone think it is not a great idea to banish all vagueness and ambiguity from law? I would make the Rule of Lenity absolute and have done.

    1. jdgalt1 – Because the Rule of Lenity only comes into play when there is some vagueness/ambiguity in the law. If we were to “banish all vagueness and ambiguity” from the law (a worthy goal) then Lenity can’t be “absolute” or anything. Lenity would be unreachable.

  3. hi ev. i want to connect this post with your recent one on rudeness and the first amendment.

    i was once (falsely) charged under the indiana battery statute, which prohibits touching which is rude, insolent or angry.

    i thought this too vague, and impinging on protected expression. but my lawyer at the time wasn’t up to doing a constitutional challenge.

  4. The definitions of “drug” and “[medical] device” in both the federal and state laws have been ridiculously broad since the amendments in 1938 to the FFDCA (probably earlier in some state pharmacy statutes) that were intended to include diet pills but wound up using open-ended language instead of simply referencing weight loss claims. Same with “cosmetic”. I don’t know whether it’s fortunate or unfortunate that they haven’t been enforced so broadly. It might be unfortunate in that had they been construed as written, the statutes might’ve been explicitly amended after the first enforcement action that might’ve regulated, for instance, articles of clothing as cosmetics or medical devices. As is there’s still plenty of ambiguity that never gets litigated; the status of tobacco products was one of the rare cases that eventually did.

  5. Cases like the ones I described above are usually not handled by any of the means written of in the article, but by what might be called the Rule Of Incredulity. For instance, nobody would believe that legislators intended to regulate anti-personnel weapons as “medical devices” (because injury or death certainly affects the structure or function of a human body) or “pesticides” (because nothing under FIFRA excludes other human beings from the definition of “pest”), or for that matter, pesticides as veterinary drugs. Still, substances being used for execution of a death sentence are being treated legally as drugs, it seems.

    The Rule of Incredulity could easily be applied to the within-500′-of-a-school statute written of in the article, for example.

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