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Full-Text Articles in Law
High-Stakes Interpretation, Ryan D. Doerfler
High-Stakes Interpretation, Ryan D. Doerfler
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Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.
This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to regard …
Fair Notice And Fair Adjudication: Two Kinds Of Legality, Paul H. Robinson
Fair Notice And Fair Adjudication: Two Kinds Of Legality, Paul H. Robinson
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We distinguish our form of government and our legal system from others by our commitment to the rule of law. In the criminal law, in particular, this commitment is aggressively enforced through a series of doctrines that taken together demand a prior legislative enactment of a prohibition expressed with precision and clarity, traditionally bannered as the legality principle. But it is argued in this article that the traditional legality principle analysis conflates two distinct issues: one relating to the ex ante need for fair notice, the other to the ex post concern for fair adjudication. There are in fact two …