Walker on Vagueness' Three Faces

Alexander Walker, Columbia University Law School, has published Vagueness' Three Faces as a Columbia Public Law Research Paper. Here is the abstract.

In the law of interpretation, context is king. There is widespread consensus that the interpretive act requires knowing more than just the words on the page. Jurists might disagree about how important certain features of context are, but no one, we are told, is a literalist anymore. This essay challenges the received wisdom that the law has moved away from literalism by looking at doctrines that are triggered by a finding of a lack of clarity. These doctrines—variously called clear statement rules or clarity doctrines—require a court not to determine the best meaning of a legal text but rather whether that text is unclear. This essay uncovers that doctrines spanning criminal, administrative, contract, Federal Indian Law, and constitutional law employ three different theories of language to determine whether a text is clear. One is communal. One is individualistic. But one is decidedly literalist. While there is nothing per se wrong with different theories in different contexts, this essay argues that the literalism currently present in certain doctrines—notably the rule of lenity and void-for-vagueness doctrine—is either illogical or illegitimate. Instead, using Federal Indian Law as a paradigm, courts should fashion an understanding of clarity that is in the general case communal but admits individualistic considerations when justice so requires, patterning off the law-equity divide. This approach avoids the rule-of-law concerns where beliefs about efficiency sneak into discussions of language while also respecting the complexity of language.

Download the article from SSRN at the link.