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Full-Text Articles in Law
Extremely Broad Laws, Kiel Brennan-Marquez
Extremely Broad Laws, Kiel Brennan-Marquez
Faculty Articles and Papers
Extremely broad laws offend due process. Although the problem has not been lost on courts, their solution to date has been haphazard: casting breadth as a species of uncertainty-ambiguity or vagueness-and repurposing uncertainty-focused doctrine accordingly. The trouble is, breadth and uncertainty are not the same. They have different analytic features and raise distinct concerns, making the tools designed to resolve uncertainty ill-suited to reining in breadth. Vague and ambiguous laws deprive people of notice about what the law requires. They evoke the Star Chamber and Kafka stories-the dread of inhabiting an incomprehensible legal order. With broad laws, the issue is …
Updating The Constitution: Amending, Tinkering, Interpreting, Richard Kay
Updating The Constitution: Amending, Tinkering, Interpreting, Richard Kay
Faculty Articles and Papers
The U.S. Constitution is now 230 years old, and it is showing its age. Its text, taken in the sense that its enactors understood it, is, unsurprisingly, inadequate to the needs of a large, populous twenty-first century nation. The Constitution creates a government that is carefully insulated from the democratic preferences of the population. It fails to vest the central government with the tools needed to manage and regulate a vast, complicated, and interrelated society and economy. On the other hand, it guarantees its citizens protection of only a limited set of human rights. Notwithstanding these blatant defects, the means …