A Political Interpretation of Vagueness Doctrine

62 Pages Posted: 4 Oct 2019

See all articles by Guyora Binder

Guyora Binder

University at Buffalo Law School

Brenner Fissell

Villanova University; Villanova University, Law School

Date Written: September 14, 2019

Abstract

The “void-for-vagueness” doctrine requires the specific definition of criminal offenses. In this Article, though, we claim it does more: it largely restricts criminalization decisions to legislatures, which are unlikely to criminalize conduct they see as both harmless and widespread. Thus, rather than constitutionalizing the harm principle and thereby assuming a judicial obligation to define harm, the Supreme Court has used the vagueness doctrine to constrain majorities to make their own assessments of harmfulness. While American law has no explicit requirements that criminal liability be created by legislation or conditioned on harm, the vagueness doctrine achieves those ends indirectly.

Keywords: criminal law, constitutional law, vagueness, void-for-vagueness

Suggested Citation

Binder, Guyora and Fissell, Brenner, A Political Interpretation of Vagueness Doctrine (September 14, 2019). University of Illinois Law Review, 2019, Available at SSRN: https://ssrn.com/abstract=3453828

Guyora Binder

University at Buffalo Law School ( email )

528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-2673 (Phone)
716-645-2640 (Fax)

Brenner Fissell (Contact Author)

Villanova University ( email )

Villanova, PA 19085
United States

HOME PAGE: http://www.brennerfissell.com

Villanova University, Law School ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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