Extremely Broad Laws

26 Pages Posted: 24 Jul 2018 Last revised: 18 Sep 2019

See all articles by Kiel Brennan-Marquez

Kiel Brennan-Marquez

University of Connecticut - School of Law

Date Written: June 29, 2018

Abstract

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 not notice but reach. Broad statutes can be plenty clear about what they require. The problem is they sweep in too much everyday conduct, arousing worry about outsized power and arbitrary enforcement. Here, the literary specter is not Kafka, but Orwell, and the nightmare is not an opaque legal system; it is a police state. Extremely broad laws, in this sense, are problematic for the same basic reason as general warrants: they afford state officials practically boundless justification to interfere with private life. After expounding the problem abstractly, I close by exploring how courts might tackle the breadth problem in practice—and I ultimately suggest that judges should be empowered to hold statutes “void-for-breadth.”

Keywords: Jurisprudence, Criminal Law, Statutory Interpretation, Due Process, Constitutional Law, Courts

JEL Classification: K10, K14, K42

Suggested Citation

Brennan-Marquez, Kiel, Extremely Broad Laws (June 29, 2018). 61 Arizona Law Review, Vol. 641 (2019). Available at SSRN: https://ssrn.com/abstract=3205783 or http://dx.doi.org/10.2139/ssrn.3205783

Kiel Brennan-Marquez (Contact Author)

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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