The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.