"Fair Notice" Is More Than A Formal-Announcement Principle

When a criminal law is extremely broad but perfectly clear, in what sense does it violate rule-of-law principles?

|The Volokh Conspiracy |

In a previous post, I introduced the claim—drawn from a new article, Very Broad Laws—that extremely broad criminal statutes, no less than vague and ambiguous criminal statutes, are constitutionally problematic for depriving ordinary people of "fair notice" about how the legal system actually works. One common rejoinder goes like this. The reason that vagueness and ambiguity are (at least in their most severe forms) unacceptable is they make it impossible for people to know what the law requires of them. They truly deprive us of "fair notice." Breadth, on the other hand, does no such thing. Sure, an ordinary person (or a judge, or a law professor) may not like broad laws, and may think them unwise—but they don't put members of public in the same bind that indeterminate laws do.

This rejoinder rests on an overly-thin, overly-positivist conception of "fair notice." In fact, "fair notice"—as the Court uses the term, and as the rule-of-law principles underlying the term would independently suggest—is a normative concept. It is not a question of whether the law's requirements are formally announced in the codebooks. It is a question of whether people have a meaningful understanding of how the legal system works, and have an opportunity to plan their lives, and calibrate their conduct, accordingly.

Of course, this is not to say that the first issue (the formal announcement of law's requirements in codebooks) is irrelevant to second issue (whether people understand with sufficiently clarity how the legal system works). But the relationship is one of necessity, not sufficiency. Abstract clarity about a law's requirements is necessary to give people fair notice, which means that severe forms of linguistic indeterminacy, because they deprive people of even abstract clarity, is enough to doom the law constitutionally. But banishing linguistic indeterminacy—ensuring that the law is neither too vague nor too ambiguous—is not enough to ensure fair notice. At the risk of making all post sound like a formal-logic brain teaser, we could put articlute this point the other way around (as I do in the article itself) and say that linguistic indeterminacy is sufficient to trigger fair notice concerns, but it is not necessary to do so. Breadth can trigger fair notice concerns as well.

A concrete example from last term will shore up the point. The Court's most recent addition to its "anti-breadth" canon, Marinello v. United States, centered on 26 USC § 7212(a), the so-called Omnibus Clause of the Internal Revenue Code, which criminalizes the act of "corruptly or by force or threat of force … obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [taxes]." The dispute was over which kinds of "obstruction" or "impediment" qualify as predicate acts under the Omnibus Clause—in other words, at the level of actus reas, how far does the clause reach? According to the government, the answer was simple: the clause reaches all non-compliance with tax rules. And its legal argument was equally simple: "impediment" means "a thing that impedes," and there is no doubt that deliberate acts of non-compliance impede the overall administration of taxes.

No dice. Finding for petitioner, Justice Breyer reasoned that the government's construction of "impediment," despite adhering straightforwardly to the word's definition, simply encompassed too many cases of low-level—that is, culpable but, in the grander scheme of things, innocuous—violations. "Interpreted broadly," wrote Breyer, "the provision could apply to a person who pays a babysitter $41 per week in cash without withholding taxes, leaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to provide every record to an accountant"—but these kinds of applications, plainly disproportionate as they are, would violate the "fair warning" principle that has long "led [the] Court … to exercise interpretive restraint."

Importantly, however, the reason the government's construction flouted the "fair warning" principle was not that minor wrongdoing, like paying a babysitter without withholdings, is permissible; it plainly violates the tax code. Nor was the problem that a reasonable person could not be expected to know of the relevant law. Ignorance does not ordinarily excuse violations, and in any case, Justice Breyer explicitly acknowledged the possibility that someone who pays a babysitter without withholdings (or the equivalent) "may believe that, in doing so, he is running the risk of having violated an IRS rule." Rather, the infirmity of the government's view is that no one, having committed such a minor offense, "would believe he [could] fac[e] a potential felony prosecution for tax obstruction." In other words, the problem was the penalty's severity — or more exactly, the mismatch between the penalty's severity and the conduct's relative harmlessness.

This conclusion is important because it underscores that fair notice, in this context, is not about whether someone is literally on notice of the law's requirements. Putting aside the obvious issue that few people actually read laws, cases like Marinello point up the additional problem that even if one does consult the relevant law, there can still be a gap between the statute's clear language and reasonable expectations about the way it will be enforced; and when the gap is extreme, it should be resolved in favor of ordinary people, not in favor of the government. The whole point of the Marinello Court's analysis is that someone who fails to withhold from payments to a babysitter—even if he knows that doing so is wrong; indeed, even if he knows that doing so technically falls within the scope of 26 USC § 7212(a)—would never imagine being held criminally liable, down the line, for felony tax obstruction. And it is that variable, not the formal reach of tax law, that should drive the due process analysis.


NEXT: Does Everything Trump Touches Really Die?


  1. It seems “disproportionate punishment” is a simple fallout of the prohibition against “cruel and unusual” punishments.

  2. “Ignorance does not ordinarily excuse violations”

    Unless of course, the ignorant violator is a cop.

  3. I still think the easier solution would be to eliminate the legal fiction that “ignorance is no excuse”. There was an analysis a couple years back showing that even if all you did for 8 hours a day was read laws and regulations, you could not keep up with the body of new rules, much less ever catch up on all the existing rules.

    If courts would start holding that reasonable ignorance is an excuse, lots of these laws would be automatically invalidated. This would, over time, create an incentive for legislatures to write fewer and more clear laws until they get back down to a volume where actual knowledge of the law was possible.

    1. One of my suggested amendments is all laws expire after (5 years, 10 years, whatevs) unless Congress renews it. This forces them to re-evaluate them on a regular basis.

      One of the arguments against it is “It’s impossible for Congress to review that many laws every 5 years”. Yet The People are expected to know and follow all of them, so that isn’t helping their case any.

  4. I’m curious how overly broad laws arguments work in contract law and TOS specifically. For example, the recent news of facebook, twitter etc banning based on hate speech w/o operational definitions of hate-speech rhymes with a lot of the overly broad laws. Do TOS ever become invalid bc they are overly broad?

    1. No, contract clauses are not automatically invalid for being “overbroad.” But if the ovebreadth makes the provision ambiguous, all other things being equal, the ambiguity is resolved against the party who drafted the provision. Since TOS are drafted unilaterally by the social media sites, ambiguities in the TOS should be resolved in favor of the user and against the social media company.

  5. Has anyone made an economic/ legal model of the burdens placed on citizens by legal principles such as ignorance being no excuse, breadth being no impediment to fair notice etc.?

    I don’t mean counting legal code pages and dividing by reading rate assuming total comprehension, or counting felonies per day assuming perfect administration of law..

    I mean an analysis which assesses likelihood of suffering various levels of legal consequence for various levels of legal knowledge and of illegal behavior, factoring in SES and race etc.

    My guess is that any realistic analysis of this kind, measured against pretty much any common sense standard of acceptability, would conclude that we are vastly overregulated, and that the playing field is extremely uneven (being heavily biased in favor of those with the most influence over the principles in question)

  6. It is not a question of whether the law’s requirements are formally announced in the codebooks. It is a question of whether people have a meaningful understanding of how the legal system works, and have an opportunity to plan their lives, and calibrate their conduct, accordingly.

    Once again, this sounds like a complaint that malefactors are being deprived of ability to calibrate their planned law breaking, so as to produce a situation where they can factor in penalties as a cost of doing business.

    If that is not the intent, please explain why it wouldn’t be a widespread unintended consequence.

    1. Imagine a road that has a speed limit of 30 MPH. This road is in a town that has a statute that says, “all roads in this town have a speed limit of 30 MPH”, but they do not have MPH roadsign, and indeed many of the roads in this town are roads that would normally have higher than 30 MPH speed limits based on national norms. The car driver passing through this town is akin to most citizens on many laws.

      With respect to the example in the case cited by the professor, it would be slightly different. The roads would have signs posted at the entrance of the town saying “30 MPH”, but no subsequent signs even when the road changes from a city street to an 8 lane highway. And on top of that, the city’s code states speeding is a $1,000,000 fine. However there is one respite for people, this town is huge and only has 1 traffic cop, so most people are safe most of the time (and enforcing the speed limit on everyone would destroy the economy of the city). However, a few mopes a day get totally screwed over.

      1. Allutz, the subject which concerns me about these proposals is well captured by the professor’s fish case example, in a previous post. There he describes not someone caught unawares, but a deliberate lawbreaker, and seems to complain that the law is too stern, because it would make that kind of lawbreaking infeasible by punishing it too severely. He seems to be arguing for a blurry border error at the enforcement boundary of every law, (note, not a blurry definition, nor a presumptively ignorant lawbreaker) where the effects of law are mitigated by mild enforcement.

        And however many examples are offered to make this seem a matter of concern regarding daily personal conduct, I doubt that has much to do with what motivates the proposal. I think it is mostly motivated by the evergreen institutional libertarian crusade to weaken individual rights in the interest of furthering corporate rights.

        I suggest libertarians who are genuinely concerned about protecting personal rights should proceed cautiously before embracing seeming support from corporate and institutional libertarian promoters. To the extent that individual rights are important for protecting personal agency with regard to society and government, the latter group is no friend of the former. And indeed, interests don’t even align with regard to protecting the value of personal self-expression?a value corporate libertarianism is more likely to stifle than to promote.

    2. I’ll admit I’m a little confused by your comment.

      He doesn’t seem to be referring just to malefactors, rather that the decisions that well-meaning people make (how they calibrate their conduct) are influenced by what they understand the law to be. If it’s lawful to undertake some activity X (say for example setting up a curbside lemonade stand) they’ll do it. But if X has been made malum prohibitum (no curbside stands on this street) then they won’t.

      As for your ‘unintended consequence’ point.

      I suppose they would potentially derive advantages from this to the extent it helps factor into their cost benefit analysis, allows them to avoid pretextual searches/arrest from crimes secondary to the one actually being investigated, or avoid being booked on one set of charges because the others can’t be proven etc. etc.

      Of Course, sufficiently industrious malefactors can already do this WRT the many laws that are not extremely broad.

      And they already derive similar benefits from prohibitions on vague laws, overly selective enforcement of law, or just the requirements of due process in general.

      But that’s just how constitutional protections work, they benefit both those who strive to obey the law and those who strive to break it (a good thing IMHO); this isn’t really any different, and I believe is understood implicitly so I don’t think its really an “unintended consequence”, just my 2?.

  7. scio me nihil scire, thanks for your thoughtful comment. With regard to: He doesn’t seem to be referring just to malefactors, rather that the decisions that well-meaning people make . . .

    I don’t think he is referring to people at all, well-meaning or otherwise. Make it a point to notice, when corporate interests mobilize to escape government oversight, they are always pleased to cast examples in terms of experiences attributed to natural persons?and hope to round up natural persons as allies against their own interests?especially including their own libertarian interests.

    That is what I suggest is going on here. It is a mistake for libertarians seeking to vindicate individual personal rights to incautiously cast their lot with libertarian-seeming demands for rights by commercial corporations. The broader the scope for the latter, the more they will stifle the former.

    1. Stephen Lathrop, I appreciate your clarification, and I’ll admit I had not really thought about things from that perspective.

      (See continuation below)

      1. Even rereading the article, it’s not at all clear that he intends to solely or even primarily refer to corporate entities (or ‘artificial persons’), or that those are the primary intended beneficiaries of his proposal, but I’m unfamiliar with the larger context of the author’s work, so it’s possible I’m off-base here.

        Doubtless, corporate entities are, in general, better positioned through their greater resources to take advantage of the greater clarity proposed here (OTOH this is also true of essentially any changes to the law so YMMV on the significance of that fact).

        Even so, I’m not yet ready to throw the baby out with the bath water on this one. Due process is important; of course malefactors (corporate or otherwise) benefit from the expansion of its protections, but we accept this as necessary to maintaining the integrity of the system as a whole.

        Now there are practical limits in the extent of safeguards for any legal system that can or should be offered. As an extreme example, we could just stop prosecuting everyone, in which case no one innocent would ever go to jail (this is the goal in theory), but no one guilty would go to jail either (this is really bad), at which point our safeguards are clearly to great.

        Maybe I’ve missed something in my analysis here, perhaps this change will make it very difficult or impossible to punish a wide swath of nefarious activity, but if so that’s not evident to me.

        1. OK Stephen, so I just read your reply to Allutz (probably should have done that before my last post), and I think I understand your concerns a bit better now.

          In the setting of intellectual debate, I do not tend to bother myself with the motives of speakers. As more knowledge typically results when you engage with and attack the ideas under contention rather than the people involved; what’s more good ideas can be proposed by people with terrible motives, and bad ideas can be proposed by those with the best of intentions. So, even if we know why a proposal was made it gives us only limited insight into the wisdom of the proposal itself.

          That said outside this kind of forum, in the real world, asymmetries of information (and the time required to remedy those) are such that a proposer’s motive may have limited utility (while not dispositive) as a heuristic for rapid decision-making in acceding to or rejecting a proposal. Knowing very little about the author however, I can’t make my own judgements on the matter, but I do respect your note of caution.

Please to post comments

Comments are closed.