Alexander Zhang, the Legal History Fellow at the Yale Law School, has posted Fair Notice as a Sociopolitical Choice, which is forthcoming in the Duke Law Journal.
This Article reframes deadlocked debate about “fair notice” as a justification for statutory interpretation methods by developing a historical account of a crucial, overlooked dimension: legislatures’ and laypeople’s value judgments about notice. On one side of the debate are idealists who contend, on due process grounds, that judges should embrace interpretive methods and theories based on how well they promote fair notice. On the other side are realists who counter, on empirical grounds, that perfect notice is impossible. Each side continues to talk past the other because we lack a fleshed-out framework for evaluating when the fair-notice basis of a given interpretive method or theory is sufficient or superior to that of others. In the vast terrain of this debate beyond the contexts of the rule of lenity and the void-for-vagueness doctrine, the stalemate has left critical questions undertheorized: Given notice’s real-world costs and limits, how much notice is “enough” for judges to promote through statutory interpretation, and why should judges promote more than enough, less than enough, or just enough notice?
The Article uncovers two features of notice with the goal of developing a vocabulary that can be used to resolve the impasse on normative grounds. First, legislatures and laypeople are always in the background making choices about what constitutes “good” or “fair” notice, and, most importantly, they influence how different forms and costs of notice are distributed across different segments of society. Second, these choices have produced deep societal inequalities of notice. Two major transformations in the history of fair notice illuminate these features. First, legislatures made notice fictional by prioritizing a distribution of notice that was “efficient” rather than audience neutral, redistributive, or notice maximizing. Second, and in tension with the conventional idea that laypeople are inherently notice-phobic, laypeople once developed a mass political culture—eventually abandoned by the early twentieth century—that involved reading not just statutes but also legislative history.
From this history, the Article ultimately argues that because nonjudicial choices pertaining to notice are always in the backdrop of judicial invocations of fair notice in statutory interpretation, judges who want to embrace fair notice need to have a theory of whether and how to account for these choices—especially choices influencing the distribution of notice across society. While this Article leaves for another time the task of resolving how exactly judges should account for these choices, it preliminarily sketches two potential approaches. It first traces out a hands off approach that is guided by judicial restraint and that reflects the choices of legislatures (and the choices of the people vis-à-vis legislatures). Second, and in the alternative, it traces out a law-and-political-economy approach to imagining a world of “enough” notice.
Finally, the Article explains how the history of notice offers two interventions for the methodology of evaluating fair notice. First, the history can help scholars better determine what constitutes “good” or “fair” notice by revealing the range of possibilities—and limits—of notice. Second, the history demonstrates how fair notice has been contingent on changing historical circumstances, which calls into question the long-term stability of fair notice in statutory interpretation theory.
--Dan Ernst
