This Article is the first of a two-part series on the vagueness doctrine. The objective of this first step is to situate the well-known Lambert case within that doctrine. Lambert v. California is a fifty-seven year-old chestnut involving a Douglas-Frankfurter debate in terms that can charitably be called obscure. Many have taken the case to involve, at bottom, a notice principle requiring what this Article calls socialization—the idea that to be fair the criminal law should emit warning signals that will alert the conscience of the average citizen to potential illegality. The Article explores the consequences of elevating that idea to a freestanding constitutional principle, and rejects that conception of the case because it would insert the Constitution too far into ordinary criminal law doctrine. Instead, the Article concludes, even though Lambert involved an ordinance whose language was perfectly clear, the case should be regarded as turning on core vagueness principles. When thought of in this manner, moreover, it can be taken as a partial, if not complete, elucidation of the “fair notice” branch of that doctrine. The second Article in the series will integrate this insight into a more complete view of vagueness itself.
This Note aims to expand understanding of the sue-and-settle controversy by providing useful data, analytics and commentary from which courts, policymakers and academics may further their exploration of the process. This Note applies empirical analysis to sue-and-settle under the Clean Air Act, Clean Water Act and Endangered Species Act under the current Administration. It explores the principal charge against the process: that it has the effect of secret, backdoor rulemaking; and, it finds that a more nuanced analysis than that conducted by leading critics of the practice should properly distinguish between two very different uses of the practice—one deleterious, the other beneficial. Accordingly, the Note concludes that only with the former use should the process give cause for alarm, and that such deleterious uses make up only an extremely small fraction of sue-and-settle cases. Thus, wholesale destruction of the process is unnecessary; targeted remedies are more appropriate.
In the war over sue-and-settle, this Note does not completely dispel the fog by providing a definitive account of the causation behind the explosive growth in the process. But it does, however, provide further illumination of the battlefield, better informing the ongoing debate.
This Essay argues that Congress should adopt a rule of narrow construction of the national security surveillance statutes. Under this interpretive rule, which the Essay calls a “rule of lenity,” ambiguity in the powers granted to the executive branch in the sections of the United States Code on national security surveillance should trigger a narrow judicial interpretation in favor of the individual and against the State. A rule of lenity would push Congress to be the primary decision maker to balance privacy and security when technology changes, limiting the rulemaking power of the secret Foreign Intelligence Surveillance Court. A rule of lenity would help restore the power over national security surveillance law to where it belongs: The People.