The Fair Notice Fiction

83 Pages Posted: 30 Apr 2023

See all articles by Jesse Cross

Jesse Cross

University of South Carolina School of Law

Date Written: April 21, 2023

Abstract

The Supreme Court has now embraced a radical new direction in statutory interpretation, interpreting statutes only in accordance with their original public meaning. According to the Court, this makes statutes readable for ordinary people, which puts people on notice about their legal obligations. The Court thereby claims that its approach promotes a specific value: fair notice to the public. This theory, which is remaking our statutory law, has generally evaded academic examination.

This Article takes up that critical project, providing a comprehensive academic study of fair notice in legislation. The idea of providing fair notice to the public though statutory text, it discovers, has always been a fiction. The reading of statutory text has always been a language game accessible only to legal elites. This language game makes rhetorical appeals to ordinary people, but in the context of unavoidably elite reading practices.

The Article documents this “fair notice fiction” in both present and past. For the present, it provides a novel study of federal statutory law. This study uncovers the two features that make this law inaccessible to ordinary readers: (1) its length, and (2) its non-transparent interconnectivity. Together, these features require any reader to possess a particular skill, termed “regime literacy,” which ordinary people do not possess and cannot reasonably acquire.

Next, the Article explores the history of fair notice. Through a study of ancient Rome, early England (1066-1800), and America (1787-present), it finds that fair notice always has been a fiction. For significant portions of this history, literacy was low, texts were scarce, and language barriers were rampant. As these obstacles faded, the sheer volume of statutory law became prohibitive.

Finally, the Article outlines a new, realistic version of fair notice. This version seeks to protect two distinct values embedded in fair-notice discussions: (1) public foreseeability, and (2) separation-of-powers principles. The Article explains how these values can be protected in ways that are actually meaningful for ordinary people.

Keywords: Legislation, statutory interpretation

Suggested Citation

Cross, Jesse, The Fair Notice Fiction (April 21, 2023). Alabama Law Review, Vol. 75, No. 2, 2023, Available at SSRN: https://ssrn.com/abstract=4425730

Jesse Cross (Contact Author)

University of South Carolina School of Law ( email )

701 Main Street
Columbia, SC 29208
United States

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