Changing the Vocabulary of the Vagueness Doctrine

67 Pages Posted: 30 Jan 2015 Last revised: 13 Nov 2015

See all articles by Peter W Low

Peter W Low

University of Virginia School of Law

Joel S. Johnson

Independent

Date Written: November 2015

Abstract

The void-for-vagueness concept is itself indefinite, and the language of the doctrine exacerbates the problem. This article addresses situations where the doctrine has been used to invalidate criminal statutes that do not implicate specially protected constitutional rights. Its thesis is that application of the vagueness doctrine in this context can be understood as based on one or both of two constitutional requirements, and that they provide a better explanation for the results than traditional rhetoric. The two principles are: all crime must be based on conduct; and there must be a defensible and predictable correlation between the established meaning of a criminal prohibition and the conduct to which it is applied. The article begins by tracing the ori- gins of these two principles and then illustrates their explanatory power in two state cases — Lanzetta and Papachristou — and two federal cases — Skilling and Screws. Additional factors extraneous to the vagueness doctrine itself, however, often control the outcome in vagueness cases. This proposition is illustrated by two state cases — Morales and Kolender — and one federal case — Johnson v. United States.

Keywords: vagueness, arbitrary enforcement, fair notice, fair warning, rule of law, Johnson v. United States, Bouie, Shuttlesworth, Lanzetta, Papachristou, Morales, Kolender, Skilling, Screws v. United States, Robinson v. California

Suggested Citation

Low, Peter W. and Johnson, Joel, Changing the Vocabulary of the Vagueness Doctrine (November 2015). 101 Virginia Law Review 2051 (2015), Virginia Public Law and Legal Theory Research Paper No. 5, Available at SSRN: https://ssrn.com/abstract=2558153 or http://dx.doi.org/10.2139/ssrn.2558153

Peter W. Low (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Joel Johnson

Independent ( email )

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