Article

Race in the Machine: Racial Disparities in Health and Medical AI

What does racial justice—and racial injustice—look like with respect to artificial intelligence in medicine (“medical AI”)? This Article offers that racial injustice might look like a country in which law and ethics have decided that it is unnecessary to inform people of color that their health is being managed by a technology that likely encodes the centuries of inequitable medical care that people of color have received. Racial justice might look like an informed consent process that is reformed in light of this reality. This Article makes this argument in four Parts. Part I canvases the deep and wide literature that documents that people of color suffer higher rates of illness than their white counterparts while also suffering poorer health outcomes than their white counterparts when treated for these illnesses. Part II then provides an introduction to AI and explains the uses that scholars and developers predict medical AI technologies will have in healthcare, focusing specifically on the management of pregnancy. Part III subsequently serves as a primer on algorithmic bias—that is, systematic errors in the operation of an algorithm that result in a group being unfairly advantaged or disadvantaged. This Part argues that we should expect algorithmic bias that results in people of color receiving inferior pregnancy-related healthcare, and healthcare generally, because medical AI technologies will be developed, trained, and deployed in a country with striking and unforgivable racial disparities in health.

Part IV forms the heart of the Article, making the claim that obstetricians, and healthcare providers generally, should disclose during the informed consent process their reliance on, or consultation with, medical AI technologies that likely encode inequities. To be precise, providers should have to tell their patients that an algorithm has informed the recommendation that the provider is making; moreover, providers should inform their patients how racial disparities in health may have impacted the algorithm’s accuracy. It supports this argument by recounting the antiracist, anti-white supremacist—indeed radical—origins of informed consent in the Nuremberg Trials’ rebuke of Nazi “medicine.” This Part argues that the introduction into the clinical encounter of medical AI—and the likelihood that these technologies will perpetuate racially inequitable healthcare while masking the same—is an invitation to reform the informed consent process to make it more consistent with the commitments that spurred its origination. This Part proposes that, given the antiracist roots of the doctrine of informed consent, it would be incredibly ironic to allow the informed consent process to permit a patient—and, particularly, a patient of color—to remain ignorant of the fact that their medical care is being managed by a device or system that likely encodes racism. This Part argues that informing patients about the likelihood of race-based algorithmic bias—and the reasons that we might expect race-based algorithmic bias—may, in fact, be a prerequisite for actually transforming the inequitable social conditions that produce racial disparities in health and healthcare.

Introduction

As artificial intelligence (“AI”) technologies proliferate across sundry sectors of society—from mortgage lending and marketing to policing and public health—it has become apparent to many observers that these technologies will need to be regulated to ensure both that their social benefits outweigh their social costs and that these costs and benefits are distributed fairly across society. In October 2022, the Biden Administration announced its awareness of the dangers that “technology, data, and automated systems” pose to individual rights.1 1.See Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People, The White House Off. of Sci. & Tech. Pol’y, https://www.white‌house.gov/ostp/ai-bill-of-rights/ [https://perma.cc/E5GS-6ZP3] (last visited Jan. 5, 2024). Some states and cities have also initiated efforts to regulate AI. See, e.g.,Laura Schneider, Debo Adegbile, Ariella Feingold & Makenzie Way, NYC Soon to Enforce AI Bias Law, Other Jurisdictions Likely to Follow, WilmerHale (Apr. 10, 2023), https://www.wilmerhale.com/insights/client-alerts/‌20230410-nyc-soon-to-enforce-ai-bias-law-other-jurisdictions-likely-to-follow [https://perm‌a.cc/K47J-XZUQ] (“New York City’s Department of Consumer and Worker Protection (DCWP) is expected to begin enforcing the City’s novel artificial intelligence (AI) bias audit law on July 5, 2023. This law prohibits the use of automated decision tools in employment decisions within New York City unless certain bias audit, notice, and reporting requirements are met.”); Jonathan Kestenbaum, NYC’s New AI Bias Law Broadly Impacts Hiring and Requires Audits, Bloomberg Law (July 5, 2023, 5:00 AM), https://news.bloomberglaw.com/‌us-law-week/nycs-new-ai-bias-law-broadly-impacts-hiring-and-requires-audits [https://perm‌a.cc/L94C-X3BN] (observing that the “New Jersey Assembly is considering a limit on use of AI tools in hiring unless employers can prove they conducted a bias audit,” that “Maryland and Illinois have proposed laws that prohibit use of facial recognition and video analysis tools in job interviews without consent of the candidates,” and that “the California Fair Employment and Housing Council is mulling new mandates that would outlaw use of AI tools and tests that could screen applicants based on race, gender, ethnicity, and other protected characteristics”); Attorney General Bonta Launches Inquiry into Racial and Ethnic Bias in Healthcare Algorithms, State of Cal. Dep’t of Just. Off. of the Att’y Gen. (Aug. 31, 2022), https://oag.‌ca.gov/‌news/press-releases/attorney-general-bonta-launches-inquiry-racial-and-ethnic-bias-healthca‌re [https://perma.cc/ERC4-GVJJ] (“California Attorney General Rob Bonta today sent letters to hospital CEOs across the state requesting information about how healthcare facilities and other providers are identifying and addressing racial and ethnic disparities in commercial decision-making tools. The request for information is the first step in a DOJ inquiry into whether commercial healthcare algorithms—types of software used by healthcare providers to make decisions that affect access to healthcare for California patients—have discriminatory impacts based on race and ethnicity.”).Show More Through its Office of Science and Technology Policy, the Administration declared the need for a coordinated approach to address the problems that AI technologies have generated—problems that include “[a]lgorithms used in hiring and credit decisions [that] have been found to reflect and reproduce existing unwanted inequities or embed new harmful bias and discrimination,” “[u]nchecked social media data collection [that] has been used to threaten people’s opportunities, undermine their privacy, or pervasively track their activity,” and, most germane to the concerns of this Article, “systems [that are] supposed to help with patient care [but that] have proven unsafe, ineffective, or biased.”2 2.See Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People, supra note 1.Show More

As an initial measure in the effort to eliminate—or, at least, contain—the harms that automation poses, the Administration offers a Blueprint for an AI Bill of Rights, which consists of “five principles that should guide the design, use, and deployment of automated systems to protect the American public in the age of artificial intelligence.”3 3.Id.Show More Crucially, the Blueprint identifies “notice and explanation” as a central element in a program that protects the rights of individuals in an increasingly automated society.4 4.Id.Show More That is, the Biden Administration proposes that in order to ensure that AI does not threaten “civil rights or democratic values,” individuals should be informed when “an automated system is being used,” and they should “understand how and why it contributes to outcomes that impact” them.5 5.Id.Show More To apply it to the context to which this Article is most attuned, if a hospital system or healthcare provider relies upon an AI technology when making decisions about a patient’s care, then the patient whose health is being managed by the technology ought to know about the technology’s usage.

Although the Biden Administration appears committed to the idea that an individual’s rights are violated when they are unaware that an AI technology has had some impact on the healthcare that they have received, many actors on the ground, including physicians and other healthcare providers, do not share this commitment. As one journalist reports:

[T]ens of thousands of patients hospitalized at one of Minnesota’s largest health systems have had their discharge planning decisions informed with help from an artificial intelligence model. But few if any of those patients [have] any idea about the AI involved in their care. That’s because frontline clinicians . . . generally don’t mention the AI whirring behind the scenes in their conversations with patients.6 6.Rebecca Robbins & Erin Brodwin, An Invisible Hand: Patients Aren’t Being Told About the AI Systems Advising Their Care, STAT (July 15, 2020), https://www.statnews.com/‌2020/07/15/artificial-intelligence-patient-consent-hospitals/ [https://perma.cc/R3F5-NNX4].Show More

This health system is hardly unique in its practice of keeping this information from patients. “The decision not to mention these systems to patients is the product of an emerging consensus among doctors, hospital executives, developers, and system architects who see little value . . . in raising the subject.”7 7.Id.Show More Moreover, while these actors see few advantages associated with informing patients that AI has informed a healthcare decision or recommendation, they see lots of disadvantages, with the disclosure operating as a “distraction” and “undermin[ing] trust.”8 8.Id.Show More

We exist in a historical moment in which the norms around notice and consent in the context of AI in healthcare have not yet emerged—with some powerful actors in the federal government proposing that patients are harmed when they are not notified that AI has impacted their healthcare, and other influential actors on the ground proposing that patients are harmed when they are notified that AI has impacted their healthcare.9 9.See also Attorney General Bonta Launches Inquiry into Racial and Ethnic Bias in Healthcare Algorithms, supra note 1 (understanding as problematic the fact that some AI tools used in healthcare “are not fully transparent to healthcare consumers”); cf. Schneider et al., supra note 1 (noting that New York City’s law regulating AI in employment requires an employer to provide “applicants and employees who reside in New York City notice of its use of AI in hiring and/or promotion decisions, either via website, job posting, mail or e-mail”). Interestingly, some investigations have shown that some patients do not want to know when physicians and hospital administrators rely on medical AI when managing their healthcare. See Robbins & Brodwin, supra note 6 (reporting that some patients who were interviewed stated that “they wouldn’t expect or even want their doctor to mention” the use of medical AI and stating that these patients “likened it to not wanting to be privy to numbers around their prognosis, such as how much time they might expect to have left, or how many patients with their disease are still alive after five years”). However, other studies have shown that patients do desire this information. See Anjali Jain et al., Awareness of Racial and Ethnic Bias and Potential Solutions to Address Bias with Use of Health Care Algorithms, JAMA Health F., June 2, 2023, at 10, https://jamanetwork.com/journals/jama-health-forum/fullarticle/2805595 [https://perma.cc/9FMK-E4VV] (discussing a “recent, nationally representative survey” that showed that “patients . . . wanted to know when [AI] was involved in their care”).Show More As we think about the shape that these norms ought to take, this Article implores us to keep in mind the fact of racial inequality and the likelihood that AI will have emerged from, and thereby reflect, that racial inequality. Indeed, this Article’s central claim is that the well-documented racial disparities in health that have existed in the United States since the dawn of the nation demand that providers inform all patients—but especially patients of color—that they have relied on or consulted with an AI technology when providing healthcare to them.

Although much has been written about AI in healthcare,10 10.Indeed, volumes have been written about algorithmic bias, what AI technologies mean with respect to data privacy, and how we ought to regulate AI inside the medical context. See generally The Oxford Handbook of Digital Ethics (Carissa Véliz ed., 2021).Show More or medical AI, very little has been written about the effects that medical AI can and should have on the informed consent process.11 11.See I. Glenn Cohen, Informed Consent and Medical Artificial Intelligence: What to Tell the Patient?, 108 Geo. L.J. 1425, 1428 (2020) (noting that his Article, which was published just three years ago, was “the first to examine in-depth how medical AI / [machine learning] intersects with our concept of informed consent”).Show More Moreover, no article to date has interrogated what the reality of racial disparities in health should mean with respect to obtaining a patient’s informed consent to a medical intervention (or nonintervention) that an AI system has recommended. This Article offers itself as the beginning of that conversation. It makes the case that we ought to reform the informed consent process to ensure that patients of color are aware that their health is being managed by a technology that likely encodes the centuries of inequitable medical care that people of color have received in this country and around the world.

The Article proceeds in four Parts. Part I canvases the deep and wide literature that documents that people of color suffer higher rates of illness than their white counterparts while also suffering poorer health outcomes than their white counterparts when treated for these illnesses. These racial disparities in health are also present in the context of pregnancy, a fact that is illustrated most spectacularly by the often-quoted statistic describing black women’s three- to four-fold increased risk of dying from a pregnancy-related cause as compared to white women.12 12.Elizabeth A. Howell, Reducing Disparities in Severe Maternal Morbidity and Mortality, 61 Clinical Obstetrics & Gynecology 387, 387 (2018).Show More Part II then provides an introduction to AI and explains the uses that scholars and developers predict medical AI technologies will have in healthcare and, specifically, the management of pregnancy. Part III subsequently serves as a primer on algorithmic bias—that is, systematic errors in the operation of an algorithm that result in a group being unfairly advantaged or disadvantaged. This Part explains the many causes of algorithmic bias and gives examples of algorithmic bias in medicine and healthcare. This Part argues that we should expect algorithmic bias from medical AI that results in people of color receiving inferior healthcare. This is because medical AI technologies will be developed, trained, and deployed in a country with striking and unforgivable racial disparities in health.

Part IV forms the heart of the Article. It begins by asking a question: Will patients of color even want medical AI? There is reason to suspect that significant numbers of them do not. Media attention to the skepticism with which many black people initially viewed COVID-19 vaccines has made the public newly aware of the higher levels of mistrust that black people, as a racial group, have toward healthcare institutions and their agents. That is, the banality of racial injustice has made black people more suspicious of medical technologies. This fact suggests that ethics—and justice—require providers to inform their patients of the use of a medical technology that likely embeds racial injustice within it.

The Part continues by making the claim that healthcare providers should disclose during the informed consent process their reliance on medical AI. To be precise, providers should have to tell their patients that an algorithm has affected the providers’ decision-making around the patients’ healthcare; moreover, providers should inform their patients how racial disparities in health may have impacted the algorithm’s predictive accuracy. This Part argues that requiring these disclosures as part of the informed consent process revives the antiracist, anti-white supremacist origins of the informed consent process. To be sure, the practice of informed consent originated in the Nuremberg Trials’ rebuke of Nazi medicine. These defiant, revolutionary origins have been expunged from the perfunctory form that the informed consent process has taken at present. Resuscitating the rebelliousness that is latent within informed consent will not only help to protect patient autonomy in the context of medical AI but may also be the condition of possibility for transforming the social conditions that produce racial disparities in health and healthcare. That is, the instant proposal seeks to call upon the rebellious roots of the doctrine of informed consent and use it as a technique of political mobilization. A short conclusion follows.

Two notes before beginning: First, although this Article focuses on medical AI in pregnancy and prenatal care, its argument is applicable to informed consent in all contexts—from anesthesiology to x-rays—in which a provider might utilize a medical AI device. Concentrating on pregnancy and prenatal care allows the Article to offer concrete examples of the phenomena under discussion and, in so doing, make crystal clear the exceedingly high stakes of our societal and legal decisions in this area.

Second, the moment that a provider consults a medical AI device when delivering healthcare to a patient of color certainly is not the first occasion in that patient’s life in which racial disenfranchisement may come to impact the healthcare that they receive. That is, we can locate racial bias and exclusion at myriad sites within healthcare, medicine, and the construction of medical knowledge well before a clinical encounter in which medical AI is used. For example: people of color are underrepresented within clinical trials that test the safety and efficacy of drugs—a fact that might impact our ability to know whether a drug actually is safe and effective for people of color.13 13.See The Nat’l Acads. of Scis., Eng’g & Med., Improving Representation in Clinical Trials and Research: Building Research Equity for Women and Underrepresented Groups 24 (Kirsten Bibbins-Domingo & Alex Helman eds., 2022), https://nap.nationalacademies.org/‌catalog/26479/improving-representation-in-clinical-trials-and-research-building-research‌-equity [https://perma.cc/FE2H-9YC5] (explaining that “research has demonstrated that many groups underrepresented and excluded in clinical research can have distinct disease presentations or health circumstances that affect how they will respond to an investigational drug or therapy” and that “[s]uch differences contribute to variable therapeutic responses and necessitate targeted efficacy and safety evaluation”). An FDA report of clinical trials that took place between 2015 and 2019 revealed that while non-Hispanic white people constituted only 61% of the general population in the United States, they were 78% of trial participants. See id. at 35; see also id. at 44–45 (“Even recently completed trials have failed to include enrollment consistent with the distribution of disease across the population—a Phase 2 trial of crenezumab in Alzheimer’s disease with 360 participants across 83 sites in 6 countries reported 97.5 percent of participants being white, and only 2.8 percent of all participants being Hispanic.”). Notably, clinical trials only rarely include pregnant and lactating people. See id. at 40. This means that when most medications are introduced into the market, their safety and efficacy vis-à-vis pregnant and lactating people are unknown—although it is quite common for people to take medications while pregnant or lactating. See id. (“During pregnancy and lactation, greater than 90 percent of these individuals take at least one medication, either to treat pregnancy-related complications or to treat ongoing medical issues.”).Show More For example: the National Institute of Health (“NIH”) and the National Science Foundation (“NSF”) fund medical research conducted by investigators of color at lower rates than that conducted by white investigators14 14.See Christine Yifeng Chen et al., Meta-Research: Systemic Racial Disparities in Funding Rates at the National Science Foundation, eLife, Nov. 29, 2022, at 2, https://doi.org/10.7554/‌eLife.83071 [https://perma.cc/NFS8-T3LB] (showing that the National Science Foundation funded proposals by white principal investigators at +8.5% of the average funding rate while funding proposals by Asian, black, and Native Hawaiian/Pacific Islander principal investigators at 21.2%, 8.1%, and 11.3% of the average funding rate, respectively); Donna K. Ginther et al., Race, Ethnicity, and NIH Research Awards, 333 Science 1015, 1016 (2011), https://doi.org/10.1126/science.1196783 [https://perma.cc/NQA9-LYMG] (showing that the National Institute of Health funded proposals by black principal investigators at close to half the rate as white principal investigators).Show More—a fact that might contribute to the underfunding of medical conditions that disproportionately impact people of color. For example: most medical schools still approach race as a genetic fact instead of a social construction, with the result being that most physicians in the United States have not been disabused of the notion that people of color—black people, specifically—possess genes and genetic variations that make them get sicker and die earlier than their white counterparts.15 15.See Christina Amutah et al., Misrepresenting Race—The Role of Medical Schools in Propagating Physician Bias, 384 New Eng. J. Med. 872, 873–74 (2021). Funding for research into the imagined genetic causes of racial disparities in health outcomes vastly outstrips funding for research into social determinants of health or the physiological effects of stress and racism on people of color. Shawn Kneipp et al., Trends in Health Disparities, Health Inequity, and Social Determinants of Health Research, 67 Nursing Rsch. 231, 231 (2018). See also René Bowser, Racial Profiling in Health Care: An Institutional Analysis of Medical Treatment Disparities, 7 Mich. J. Race & L. 79, 114 (2001) (arguing that “physicians who focus on racism as opposed to cultural peculiarities or the genetic basis of disease are likely to be considered both as not ‘real scientists’ and as dangerous” and stating that producing research that explains racial disparities in health outcomes in terms of culture and genes, as opposed to structural racism and inherited disadvantage, “enhances the researcher’s status”). This funding disparity undoubtedly contributes to the perpetuation of the myth of biological race.Show More For example: pulse oximeters, which use infrared light to measure an individual’s blood saturation levels, are so common as to be called ubiquitous, even though it is well-known that the devices do not work as well on more pigmented skin.16 16.See Haley Bridger, Skin Tone and Pulse Oximetry: Racial Disparities in Care Tied to Differences in Pulse Oximeter Performance, Harv. Med. Sch. (July 14, 2022), https://hms.‌harvard.edu/news/skin-tone-pulse-oximetry [https://perma.cc/HZW8-YMAS].Show More For example: most clinical studies that are used to establish evidence-based practices are conducted in well-resourced facilities, making their generalizability to more contingently equipped and more unreliably funded facilities uncertain.17 17.See The National Academies of Sciences, Engineering, and Medicine, supra note 13, at 25 (observing that “[c]linical research is often performed in well-resourced tertiary care sites in large urban centers, and may have limited applicability to community sites, less well-resourced safety net settings, and rural settings”).Show More For example: many research studies do not report their findings by race, thereby impeding our ability to know whether the studies’ results are equally true for all racial groups.18 18.See id. at 31 (stating that the “[l]ack of representative studies on screening for cancer or cardiometabolic disease may lead to recommendations that fail to consider earlier ages or lower biomarker thresholds to start screening that might be warranted in some populations” and observing that “due to [a] lack of studies that report findings by race,” the guidelines for some screenings are universal, although there is some evidence that they should vary by race and age).Show More And so on. If providers ought to notify their patients (especially their patients of color) that the provider has relied upon medical AI when caring for the patient, then it is likely true that providers similarly ought to notify their patients about racial inequity in other contexts as well. That is, there is a compelling argument that when a provider prescribes a medication to a patient, they might need to notify the patient that preciously small numbers of people who were not white cisgender men participated in the clinical trial of the medication.19 19.See Barbara A. Noah, Racial Disparities in the Delivery of Health Care,35 San Diego L. Rev. 135, 152 (1998) (noting that “[b]efore the National Institutes of Health (NIH) issued a directive in 1990, investigators almost uniformly tested new chemical entities only on white male subjects”).Show More There is a compelling argument that when a provider tells a black patient that the results of her pulmonary function test were “normal,” they might also need to inform that patient that if she were white, her results would be considered “abnormal,” as the idea that the races are biologically distinct has long informed notions of whether a set of lungs is healthy or not.20 20.See Lundy Braun, Breathing Race into the Machine: The Surprising Career of the Spirometer from Plantation to Genetics, at xv (2014).Show More There is a compelling argument that when a provider affixes a pulse oximeter to the finger of a patient of color, they might also need to inform that patient that the oximeter’s readings may be inaccurate—and the care that she receives based on those readings may be inferior21 21.See Bridger, supra note 16 (describing a study that showed that pulse oximeters reported blood oxygen saturation levels for patients of color that were higher than what they actually were, leading these patients’ providers to give them supplemental oxygen at lower rates).Show More—given the widely known and undisputed fact that such devices do not work as well on darker skin. There is a compelling argument that when a physician tells a pregnant patient laboring in a safety net hospital that the evidence-based practice for patients presenting in the way that she presents is an artificial rupture of membranes (“AROM”) to facilitate the progression of the labor, they might also need to inform the patient that the studies that established AROM as an evidence-based practice were conducted in well-funded research hospitals that were affiliated with universities.22 22.See, e.g., Alan F. Guttmacher & R. Gordon Douglas, Induction of Labor by Artificial Rupture of the Membranes, 21 Am. J. Obstetrics & Gynecology 485, 485 (1931) (establishing artificial rupture of the membranes as an evidence-based practice in obstetrics after studying the safety and efficacy of the procedure among patients cared for at a clinic affiliated with Johns Hopkins University).Show More There is a compelling argument that when a physician tells a forty-year-old black patient that he does not need to do a screening for colorectal cancer until age forty-five, they might also need to inform the patient that the studies that established forty-five as the age when such screenings should commence did not report their findings by race.23 23.See Screening for Colorectal Cancer: US Preventive Services Task Force Recommendation Statement, 325 JAMA 1965, 1970 (2021), https://jamanetwork.com/jour‌nals/jama/fullarticle/2779985 [https://perma.cc/TV68-6W75].Show More And so on.

It does not defeat this Article’s claim to observe that racial bias and exclusion are pervasive throughout medicine and healthcare and that providers in many contexts outside of the use of medical AI ought to notify patients how this bias and exclusion may affect the healthcare that they are receiving. Indeed, it is seductive to claim in those other contexts that it is better to fix the inequities in the healthcare than to tell patients of color about them—a fact that is also true in the context of medical AI. However, fixing the inequities in healthcare in those other contexts and telling patients about them are not mutually exclusive—a fact that is also true in the context of medical AI. And as Part IV argues, telling patients about the inequities in those other contexts might be the condition of possibility of fixing the inequities—a fact that is also true in the context of medical AI.

Essentially, this Article’s claim may be applied in a range of circumstances. In this way, this Article’s investigation into how algorithmic bias in medical AI should affect the informed consent process is simply a case study of a broader phenomenon. This Article’s insights vis-à-vis medical AI are generalizable to all medical interventions and noninterventions.

  1.  See Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People, The White House Off. of Sci. & Tech. Pol’y, https://www.white‌house.gov/ostp/ai-bill-of-rights/ [https://perma.cc/E5GS-6ZP3] (last visited Jan. 5, 2024). Some states and cities have also initiated efforts to regulate AI. See, e.g., Laura Schneider, Debo Adegbile, Ariella Feingold & Makenzie Way, NYC Soon to Enforce AI Bias Law, Other Jurisdictions Likely to Follow, WilmerHale (Apr. 10, 2023), https://www.wilmerhale.com/insights/client-alerts/‌20230410-nyc-soon-to-enforce-ai-bias-law-other-jurisdictions-likely-to-follow [https://perm‌a.cc/K47J-XZUQ] (“New York City’s Department of Consumer and Worker Protection (DCWP) is expected to begin enforcing the City’s novel artificial intelligence (AI) bias audit law on July 5, 2023. This law prohibits the use of automated decision tools in employment decisions within New York City unless certain bias audit, notice, and reporting requirements are met.”); Jonathan Kestenbaum, NYC’s New AI Bias Law Broadly Impacts Hiring and Requires Audits, Bloomberg Law (July 5, 2023, 5:00 AM), https://news.bloomberglaw.com/‌us-law-week/nycs-new-ai-bias-law-broadly-impacts-hiring-and-requires-audits [https://perm‌a.cc/L94C-X3BN] (observing that the “New Jersey Assembly is considering a limit on use of AI tools in hiring unless employers can prove they conducted a bias audit,” that “Maryland and Illinois have proposed laws that prohibit use of facial recognition and video analysis tools in job interviews without consent of the candidates,” and that “the California Fair Employment and Housing Council is mulling new mandates that would outlaw use of AI tools and tests that could screen applicants based on race, gender, ethnicity, and other protected characteristics”); Attorney General Bonta Launches Inquiry into Racial and Ethnic Bias in Healthcare Algorithms, State of Cal. Dep’t of Just. Off. of the Att’y Gen. (Aug. 31, 2022), https://oag.‌ca.gov/‌news/press-releases/attorney-general-bonta-launches-inquiry-racial-and-ethnic-bias-healthca‌re [https://perma.cc/ERC4-GVJJ] (“California Attorney General Rob Bonta today sent letters to hospital CEOs across the state requesting information about how healthcare facilities and other providers are identifying and addressing racial and ethnic disparities in commercial decision-making tools. The request for information is the first step in a DOJ inquiry into whether commercial healthcare algorithms—types of software used by healthcare providers to make decisions that affect access to healthcare for California patients—have discriminatory impacts based on race and ethnicity.”). ↑
  2.  See Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People, supra note 1. ↑
  3.  Id. ↑
  4.  Id. ↑
  5.  Id. ↑
  6.  Rebecca Robbins & Erin Brodwin, An Invisible Hand: Patients Aren’t Being Told About the AI Systems Advising Their Care, STAT (July 15, 2020), https://www.statnews.com/‌2020/07/15/artificial-intelligence-patient-consent-hospitals/ [https://perma.cc/R3F5-NNX4]. ↑
  7.  Id. ↑
  8.  Id. ↑
  9.  See also Attorney General Bonta Launches Inquiry into Racial and Ethnic Bias in Healthcare Algorithms, supra note 1 (understanding as problematic the fact that some AI tools used in healthcare “are not fully transparent to healthcare consumers”); cf. Schneider et al., supra note 1 (noting that New York City’s law regulating AI in employment requires an employer to provide “applicants and employees who reside in New York City notice of its use of AI in hiring and/or promotion decisions, either via website, job posting, mail or e-mail”).

    Interestingly, some investigations have shown that some patients do not want to know when physicians and hospital administrators rely on medical AI when managing their healthcare. See Robbins & Brodwin, supra note 6 (reporting that some patients who were interviewed stated that “they wouldn’t expect or even want their doctor to mention” the use of medical AI and stating that these patients “likened it to not wanting to be privy to numbers around their prognosis, such as how much time they might expect to have left, or how many patients with their disease are still alive after five years”). However, other studies have shown that patients do desire this information. See Anjali Jain et al., Awareness of Racial and Ethnic Bias and Potential Solutions to Address Bias with Use of Health Care Algorithms, JAMA Health F., June 2, 2023, at 10, https://jamanetwork.com/journals/jama-health-forum/fullarticle/2805595 [https://perma.cc/9FMK-E4VV] (discussing a “recent, nationally representative survey” that showed that “patients . . . wanted to know when [AI] was involved in their care”). ↑

  10.  Indeed, volumes have been written about algorithmic bias, what AI technologies mean with respect to data privacy, and how we ought to regulate AI inside the medical context. See generally The Oxford Handbook of Digital Ethics (Carissa Véliz ed., 2021). ↑
  11.  See I. Glenn Cohen, Informed Consent and Medical Artificial Intelligence: What to Tell the Patient?, 108 Geo. L.J. 1425, 1428 (2020) (noting that his Article, which was published just three years ago, was “the first to examine in-depth how medical AI / [machine learning] intersects with our concept of informed consent”). ↑
  12.  Elizabeth A. Howell, Reducing Disparities in Severe Maternal Morbidity and Mortality, 61 Clinical Obstetrics & Gynecology 387, 387 (2018). ↑
  13.  See The Nat’l Acads. of Scis., Eng’g & Med., Improving Representation in Clinical Trials and Research: Building Research Equity for Women and Underrepresented Groups 24 (Kirsten Bibbins-Domingo & Alex Helman eds., 2022), https://nap.nationalacademies.org/‌catalog/26479/improving-representation-in-clinical-trials-and-research-building-research‌-equity [https://perma.cc/FE2H-9YC5] (explaining that “research has demonstrated that many groups underrepresented and excluded in clinical research can have distinct disease presentations or health circumstances that affect how they will respond to an investigational drug or therapy” and that “[s]uch differences contribute to variable therapeutic responses and necessitate targeted efficacy and safety evaluation”). An FDA report of clinical trials that took place between 2015 and 2019 revealed that while non-Hispanic white people constituted only 61% of the general population in the United States, they were 78% of trial participants. See id. at 35; see also id. at 44–45 (“Even recently completed trials have failed to include enrollment consistent with the distribution of disease across the population—a Phase 2 trial of crenezumab in Alzheimer’s disease with 360 participants across 83 sites in 6 countries reported 97.5 percent of participants being white, and only 2.8 percent of all participants being Hispanic.”).

    Notably, clinical trials only rarely include pregnant and lactating people. See id. at 40. This means that when most medications are introduced into the market, their safety and efficacy vis-à-vis pregnant and lactating people are unknown—although it is quite common for people to take medications while pregnant or lactating. See id. (“During pregnancy and lactation, greater than 90 percent of these individuals take at least one medication, either to treat pregnancy-related complications or to treat ongoing medical issues.”). ↑

  14.  See Christine Yifeng Chen et al., Meta-Research: Systemic Racial Disparities in Funding Rates at the National Science Foundation, eLife, Nov. 29, 2022, at 2, https://doi.org/10.7554/‌eLife.83071 [https://perma.cc/NFS8-T3LB] (showing that the National Science Foundation funded proposals by white principal investigators at +8.5% of the average funding rate while funding proposals by Asian, black, and Native Hawaiian/Pacific Islander principal investigators at 21.2%, 8.1%, and 11.3% of the average funding rate, respectively); Donna K. Ginther et al., Race, Ethnicity, and NIH Research Awards, 333 Science 1015, 1016 (2011), https://doi.org/10.1126/science.1196783 [https://perma.cc/NQA9-LYMG] (showing that the National Institute of Health funded proposals by black principal investigators at close to half the rate as white principal investigators). ↑
  15.  See Christina Amutah et al., Misrepresenting Race—The Role of Medical Schools in Propagating Physician Bias, 384 New Eng. J. Med. 872, 873–74 (2021). Funding for research into the imagined genetic causes of racial disparities in health outcomes vastly outstrips funding for research into social determinants of health or the physiological effects of stress and racism on people of color. Shawn Kneipp et al., Trends in Health Disparities, Health Inequity, and Social Determinants of Health Research, 67 Nursing Rsch. 231, 231 (2018). See also René Bowser, Racial Profiling in Health Care: An Institutional Analysis of Medical Treatment Disparities, 7 Mich. J. Race & L. 79, 114 (2001) (arguing that “physicians who focus on racism as opposed to cultural peculiarities or the genetic basis of disease are likely to be considered both as not ‘real scientists’ and as dangerous” and stating that producing research that explains racial disparities in health outcomes in terms of culture and genes, as opposed to structural racism and inherited disadvantage, “enhances the researcher’s status”). This funding disparity undoubtedly contributes to the perpetuation of the myth of biological race. ↑
  16.  See Haley Bridger, Skin Tone and Pulse Oximetry: Racial Disparities in Care Tied to Differences in Pulse Oximeter Performance, Harv. Med. Sch. (July 14, 2022), https://hms.‌harvard.edu/news/skin-tone-pulse-oximetry [https://perma.cc/HZW8-YMAS]. ↑
  17.  See The National Academies of Sciences, Engineering, and Medicine, supra note 13, at 25 (observing that “[c]linical research is often performed in well-resourced tertiary care sites in large urban centers, and may have limited applicability to community sites, less well-resourced safety net settings, and rural settings”). ↑
  18.  See id. at 31 (stating that the “[l]ack of representative studies on screening for cancer or cardiometabolic disease may lead to recommendations that fail to consider earlier ages or lower biomarker thresholds to start screening that might be warranted in some populations” and observing that “due to [a] lack of studies that report findings by race,” the guidelines for some screenings are universal, although there is some evidence that they should vary by race and age). ↑
  19.  See Barbara A. Noah, Racial Disparities in the Delivery of Health Care, 35 San Diego L. Rev. 135, 152 (1998) (noting that “[b]efore the National Institutes of Health (NIH) issued a directive in 1990, investigators almost uniformly tested new chemical entities only on white male subjects”). ↑
  20.  See Lundy Braun, Breathing Race into the Machine: The Surprising Career of the Spirometer from Plantation to Genetics, at xv (2014). ↑
  21.  See Bridger, supra note 16 (describing a study that showed that pulse oximeters reported blood oxygen saturation levels for patients of color that were higher than what they actually were, leading these patients’ providers to give them supplemental oxygen at lower rates). ↑
  22.  See, e.g., Alan F. Guttmacher & R. Gordon Douglas, Induction of Labor by Artificial Rupture of the Membranes, 21 Am. J. Obstetrics & Gynecology 485, 485 (1931) (establishing artificial rupture of the membranes as an evidence-based practice in obstetrics after studying the safety and efficacy of the procedure among patients cared for at a clinic affiliated with Johns Hopkins University). ↑

  23.  See Screening for Colorectal Cancer: US Preventive Services Task Force Recommendation Statement, 325 JAMA 1965, 1970 (2021), https://jamanetwork.com/jour‌nals/jama/fullarticle/2779985 [https://perma.cc/TV68-6W75]. ↑

Ordinary Meaning and Plain Meaning

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally.

Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way.

This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.

Introduction

Today, the two most fundamental doctrines of statutory interpretation are the ordinary meaning canon and the plain meaning rule. The ordinary meaning canon: assume statutory terms bear their “ordinary meaning” unless the context indicates otherwise.1 1.E.g., Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (“In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result.”).Show More The canon is regularly described as “the [m]ost [f]undamental [p]rinciple of [l]egal [i]nterpretation,”2 2.Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015); see also William N. Eskridge, Jr., Interpreting Law 33 (2016) (calling the ordinary meaning canon “[t]he prime directive in statutory interpretation”); Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012) (“The ordinary-meaning rule is the most fundamental semantic rule of interpretation.”).Show More and the Supreme Court has long treated it as an “axiom.”3 3.E.g., Burns v. Alcala, 420 U.S. 575, 580 (1975).Show More The plain meaning rule: if the statutory text’s meaning is “plain” (as in clear), then a court must enforce that meaning regardless of other considerations.4 4.E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here . . . the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))).Show More The Supreme Court has deemed it the “cardinal” rule of statutory interpretation that comes “before all others.”5 5.Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992).Show More

Neither doctrine is textualism,6 6.Cf. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 420 (2005) (“[T]extualism does not admit of a simple definition.”).Show More but their prominence has skyrocketed with textualism’s ascendancy.7 7.See, e.g., Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev. 1915, 1973–74 (finding from a statistical analysis of the U.S. Reports that the Supreme Court’s use of “plain meaning” and “ordinary meaning” has increased exponentially since the 1970s).Show More The ordinary meaning canon is an old practice with supporting aphorisms from Blackstone, Marshall, and Holmes,8 8.See1 William Blackstone, Commentaries *59 (“Words are generally to be understood in their usual and most known signification . . . .”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J.) (observing that a legal text’s “words are to be understood in that sense in which they are generally used by those for whom the instrument was intended”); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417–18 (1899) (positing that legal interpretation asks “what [the] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”).Show More and it “straddles judicial philosophies.”9 9.Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 23 & n.238 (2022) (documenting how “all current members of the Supreme Court have invoked this rule of ordinary meaning”).Show More But the canon is particularly important to textualists.10 10.See, e.g., Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 Case W. Rsrv. L. Rev. 855, 856 (2020) (“Textualism . . . insists that judges must construe statutory language consistent with its ‘ordinary meaning.’”).Show More Thus, courts invoke “ordinary meaning” today three times as often as they did half a century ago,11 11.Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev. 213, 217 (2022) [hereinafter Tobia et al., Statutory Interpretation] (finding from a sample of six million cases that “[o]ver the past fifty years, citation to ‘ordinary meaning’ has tripled”).Show More before the rise of “the new textualism.”12 12.SeeWilliam N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623–24 (1990) (describing the development in the 1980s of a methodological commitment to enacted text over legislative history as “the new textualism”).Show More As for the plain meaning rule, it was not always in favor,13 13.In 1892, the Supreme Court famously articulated a quite different rule “that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).Show More and Judge Wald even wrote its obituary in the early 1980s.14 14.SeePatricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 197–98 (1983); cf.Arthur W. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L. Rev. 1299, 1302 (1975) (describing “the refusal of the courts to abandon” the plain meaning rule despite “reports of its death”).Show More But the plain meaning rule is textualism’s “bedrock principle,”15 15.Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 164 (2010); see alsoJohn F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1309–10 (2010) (describing the “defining feature of ‘second-generation textualism’” to be the “proposition that courts must respect the terms of an enacted text when its semantic meaning is clear, even if it seems contrary to the statute’s apparent overall purpose”).Show More and the Supreme Court now invokes the plain meaning of text more than any other interpretive tool save for precedent.16 16.Cf.Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev. 76, 95–97 (2021) (finding that the “text/plain meaning” of a statute was the most used interpretive source other than precedent in a sample of statutory interpretation cases from 2005–2017 Supreme Court Terms).Show More Thus, when Justice Kagan said “we’re all textualists now,”17 17.Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 8:29–30 (Nov. 17, 2015), https://www.youtube.com/‌wat‌ch?v=dpEtszFT0Tg [https://perma.cc/R67U-65ZS].Show More presumably she meant at least this: the text has primacy over other considerations and therefore controls if what it says is plain.18 18.Indeed, when Justice Kagan later quipped about this remark that “[i]t seems I was wrong,” she was faulting the Court for using a “get-out-of-text-free card[].” West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting); John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 129–30 (describing “nontextualist” Justices’ acceptance of the plain meaning rule). On Justice Kagan’s remark and her later retraction, see generally Kevin Tobia, We’re Not All Textualists Now, 78 N.Y.U. Ann. Surv. Am. L. 243 (2023).Show More

Yet despite how fundamental ordinary meaning and plain meaning are to our “law of interpretation,”19 19.William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1084–85 (2017) (developing an account of legal canons as part of the unwritten law that governs legal interpretation).Show More their relationship can become confused in practice. Courts, litigants, and commentators use the terms interchangeably20 20.See sources cited infra notes 310–11.Show More because “plain” can also be a synonym for “ordinary” (as in plain vanilla).21 21.William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539, 545 (2017). The wonderful “plain vanilla” example is theirs.Show More And courts conflate them doctrinally by beginning interpretation with “ordinary meaning” (or “plain meaning” in the plain-vanilla sense) under the ordinary meaning canon and then concluding that they are therefore bound to end interpretation with that meaning, regardless of extratextual considerations, under the plain meaning rule.22 22.See infra Part III.Show More The problem is that statutes sometimes have technical (i.e., non-ordinary or specialized) meanings.23 23.SeeAmy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193, 2202 (2017) (noting that textualists accept that “terms are sometimes used in their ordinary and sometimes in their technical sense”).Show More When courts conflate ordinary meaning and plain meaning, they risk excluding extratextual interpretive aids that would illuminate whether the ordinary meaning assumption should give way to a different meaning.

Consider an example involving a term with a clear ordinary meaning but less clear statutory context. The Penobscot Nation is a “riverine” Native nation.24 24.H.R. Rep. No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 3786, 3787.Show More A statute defines the “Penobscot Indian Reservation” as “the islands in the Penobscot River reserved to the Penobscot Nation by agreement with the States of Massachusetts and Maine” as of June 29, 1818.25 25.Me. Stat. tit. 30, § 6203(8) (2023). The federal Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 3, 94 Stat. 1785, 1786–87 (1980), incorporates the definition from the Maine Implementing Act, Me. Stat. tit. 30, § 6203(8) (2023). See 25 U.S.C. § 1722(i).Show More An “island,” no doubt, ordinarily does not include its surrounding waters.26 26.SeePenobscot Nation v. Frey, 3 F.4th 484, 491 (1st Cir. 2021) (en banc) (determining from dictionary definitions that it is “clear” that “an island is ‘a piece of land’” and that “[l]and does not ordinarily mean land and water”).Show More But is it plain in this statutory context that “islands” excludes the waters? Notably, the provision references a historical agreement as well as a specific set of “islands,” and the Supreme Court has said that a reservation defined by reference to specific “islands” may encompass the surrounding waters.27 27.See Alaska Pac. Fisheries v. United States, 248 U.S. 78, 86–89 (1918) (interpreting a reference to “the body of lands known as Annette Islands” in the statutory definition of the Metlakahtla Reservation and holding that “the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland—in other words, as descriptive of the area comprising the islands”).Show More Moreover, a neighboring provision guarantees fishing rights “within the boundaries of [the] Indian reservation[],”28 28.Me. Stat. tit. 30, § 6207(4) (2023).Show More and there is nowhere on the islands themselves to fish.29 29.Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186 (D. Me. 2015) (“None of those islands contains a body of water in which fish live.”).Show More The U.S. Court of Appeals for the First Circuit nevertheless felt bound to enforce the ordinary meaning of “island” under the plain meaning rule—regardless of what the historical agreement was, the purpose for codifying it, or the canon that ambiguous statutes are construed to Indians’ benefit.30 30.SeePenobscot Nation, 3 F.4th at 491 & n.5 (“Because ‘islands’ is an undefined term, we construe it in accordance with [its] ordinary meaning.” (internal quotation marks omitted) (citation omitted)); id. at 493 (citing McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020) (“There is no need to consult extratextual sources when the meaning of a statute’s terms is clear.”)); see also id. at 490–91 (citing additional plain meaning precedents); id. at 496 (“[The statute’s] reference to these treaties does not alter the plain meaning of ‘islands’ and creates no ambiguity.”); id. at 503 (“This canon only applies to ambiguous provisions.”). But see County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985))).Show More

Or consider an example of a term with a disputed ordinary meaning. Bostock v. Clayton County31 31.140 S. Ct. 1731 (2020).Show More held that the federal bar on workplace discrimination “because of . . . sex”32 32.Id. at 1738 (quoting 42 U.S.C. § 2000e-2(a)(1)).Show More protects employees against discrimination based on sexual orientation or gender identity.33 33.Id. at 1754.Show More Much has been written in Bostock’s wake on the differences among textualist Justices’ opinions in the case regarding what constitutes ordinary meaning.34 34.See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (“Bostock revealed . . . important tensions within textualism.”); Ilya Somin, Bostock v. Clayton County and the Debate over the Meaning of “Ordinary Meaning,” Volokh Conspiracy (June 19, 2020, 11:25 PM), https://reason.com/volokh/2020/06/19/bostock-v-clayton-county-and-the-debate-over-the-meaning-of-ordinary-meaning/ [https://perma.cc/ZS6W-YN87] (describing “an interesting dispute over what exactly counts as ‘ordinary meaning’” between Justices Gorsuch and Kavanaugh in Bostock); Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev. 461, 465–72 (2021) (arguing that Bostock revealed competing versions of “empirical textualism”—one focused on “what ordinary people understand [a provision] to mean, applying their own criteria” and the other focused “on the ordinary application of the established legal criterion . . . to interpret and apply the” provision).Show More Left out of that discussion is a stark point about what all the Justices signed on to: the provision’s ordinary meaning was its plain meaning. Indeed, after determining the provision’s “ordinary public meaning,”35 35.Bostock, 140 S. Ct. at 1741 (“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”).Show More the majority repeatedly justified enforcement of that meaning based on what the majority variously called the provision’s “plain meaning,”36 36.Id. at 1750.Show More “plain terms,”37 37.Id. at 1743, 1748–50, 1752.Show More “plain text,”38 38.Id. at 1751.Show More and “plain statutory command[].”39 39.Id. at 1754.Show More The dissenters drew a similar equation; they just found a different ordinary meaning.40 40.Seeinfra notes 404–07 and accompanying text.Show More Sharp intramural, text-based disputes over the ordinary meaning of the provision would seem to suggest at least that there were other plausible, even if less ordinary, readings of the text. Yet not a single Justice posited that there was any textual ambiguity warranting recourse to additional interpretive aids.

What’s more, Justice Gorsuch’s majority opinion justified giving statutory terms their “ordinary public meaning” because “only the words on the page constitute the law adopted by Congress and approved by the President.”41 41.Bostock,140 S. Ct. at 1738.Show More Yet while the fact that only the text has met the Constitution’s bicameralism and presentment requirements for making statutory law may justify enforcing its plain meaning, even textualists recognize that those requirements do not mandate reading the text according to its ordinary meaning.42 42.See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71–72 (2001).Show More After all, the Constitution does not tell us how to read the text.

In short, how ordinary meaning and plain meaning relate under their respective doctrines has become something of an enigma in practice. Justice Scalia and Bryan Garner’s influential treatise on statutory interpretation even gives a cryptic secondary definition for the plain meaning rule as: “Loosely, the ordinary-meaning canon.”43 43.Scalia & Garner, supranote 2, at 436.Show More

While there are rich literatures on both ordinary meaning44 44.See, e.g., sources cited infra notes 99, 103, 114–15, 120–22.Show More and plain meaning,45 45.See, e.g., sources cited infra notes 135, 196, 215.Show More these literatures have studied the topics separately. Scholars have noted that ordinary meaning and plain (as in clear) meaning are different,46 46.SeeBaude & Doerfler, supra note 21, at 545 (noting that “plain” means obvious under the plain meaning rule, as distinguished from its occasional use “to denote something like ordinary meaning”); Eskridge, supra note 2, at 33 (“‘Plain meaning’ ought to be reserved for a judicial declaration that there is a clear legal meaning for the provision in question . . . .”); Peter W. Schroth, Language and Law, 46 Am. J. Compar. L. 17, 26 n.41 (Supp. 1998) (“Ordinary meaning seems to differ from plain meaning, in that the former denotes something like ‘the sense this expression usually has in such contexts’ while the latter may require absence of ambiguity.”); Slocum, supra note 2, at 23–25 (briefly distinguishing the ordinary meaning canon and plain meaning rule).Show More and others have flagged that “there may be important differences” even between ordinary meaning and plain-vanilla meaning.47 47.Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev. 726, 736 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 234 n.6 (observing in a footnote “the important point that plain meaning is not equivalent to ordinary meaning”).Show More But no one has explained these differences in any depth. That is my goal—to clarify the differences between ordinary meaning and plain meaning, to identify the ways in which they are conflated, and to evaluate when they should converge.

My thesis: “ordinary meaning” under the ordinary meaning canon and “plain meaning” under the plain meaning rule have different definitions, functions, consequences, and justifications. Both are sensitive to context, however, because courts agree that statutory terms have meaning only in context.48 48.See infra note 84 and accompanying text.Show More Thus, a term bears its ordinary meaning unless the context indicates a technical meaning. But a term’s ordinary meaning is also its plain meaning only when it is plain from how the term is used in the statute that its context is ordinary, not technical. How plain must it be? Because “plainness” is ultimately a legal characterization,49 49.See Ryan D. Doerfler, How Clear Is “Clear”?, 109 Va. L. Rev. 651, 657–58 (2023); Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1505–09 (2019).Show More how plain (and to whom it must be plain) should depend on the court’s purposes for assuming ordinary meaning. The following roadmap previews the details.

Part I defines “meaning.” What the words and phrases in a statute “mean” in a legal sense differs from what they “mean” in a linguistic sense. Ordinary meaning and plain meaning are both claims about linguistic meaning—specifically, what the statutory words and phrases in context would convey to a reasonable English user. But the nature of their claims as well as the consequences for legal meaning are very different.

Part II clarifies the differences between ordinary meaning and plain meaning. First, different definitions: ordinary meaning refers to the content of what the statutory text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the statutory text conveys in context is clear from the text. Second, different functions: ordinary meaning provides a starting point for what the statute means subject to other considerations, while plain meaning acts as an evidentiary rule to bar other considerations if the statute’s meaning is clear from the text. Third, different consequences: ordinary meaning provides a statute’s default legal meaning, while plain meaning specifies its legal meaning (arguably subject to absurdity). Fourth, different justifications: because statutes are not, in fact, everyday communications, ordinary meaning must ultimately be justified counterfactually (e.g., asking how an ordinary member of Congress, as opposed to a court, would interpret the statute) or by normative values (e.g., democracy and the rule of law). In contrast, courts enforce plain meaning for an epistemic reason: the clear meaning of the text that survived the constitutional process for making statutory law is the best evidence of the legal norms that Congress promulgated.

Part III identifies how courts conflate these differences in practice. Courts refer to ordinary meaning and plain meaning interchangeably, which can lead them to invoke the plain meaning rule to enforce plain-vanilla meaning. Courts also conflate the doctrines by relying on the plain meaning rule to enforce ordinary meaning merely absent a statutory definition, like in Penobscot Nation v. Frey, or other clear statement from Congress. And in recent cases, such as Bostock, the Supreme Court has begun to muddle their justifications, suggesting that the rationale for enforcing plain meaning mandates reading statutes according to their ordinary meaning.

Part IV evaluates when courts should enforce ordinary meaning as plain meaning. A term’s ordinary meaning—even when clear—is also its plain meaning only if the statutory context plainly supports that reading. Thus, ordinary meaning is not always plain meaning. But often they converge. Not only are there easy cases with only one—both ordinary and plain—meaning, but “plainness” also should not require the complete absence of alternative readings. Rather, whether a meaning is “plain” is ultimately a legal judgment that should depend on the court’s purposes for assuming ordinary meaning. If a court assumes that “island” bears its ordinary meaning as an expedient method to reach an agreement among the judges, then the question is “how plain to us?” and the threshold for plainness is low—the whole point is to reach a solution efficiently. But if a court assumes that “island” bears its ordinary meaning because, in a democracy, laws should be interpreted according to how the public would understand them, then the question changes to “how plain to ordinary people?” And the threshold for plainness may go up, depending on the court’s beliefs about how ordinary people distinguish between ordinary and technical language. Thus, for plain meaning, much depends on the reasons for ordinary meaning.

The Conclusion sums up the implications for legal practice. First, courts and litigators should be clear about when they are making a claim about ordinary meaning as opposed to plain meaning, given their different interpretive consequences. Second, courts should ensure they match the correct consequences to ordinary meaning and plain meaning respectively. Third, courts should enforce ordinary meaning as plain meaning only when it is plain from a term’s statutory context that it bears its ordinary meaning.

What lies outside this Article’s scope, however, is whether ordinary meaning and plain meaning are coherent guideposts for statutory interpretation. There is, to be sure, profound disagreement on that score. But what I take to be a less controversial point is that today’s practitioners and courts operate in an environment in which claims about ordinary meaning and plain meaning are facts of life. So this Article is written in the spirit that, regardless of one’s views on ordinary meaning and plain meaning, it is worth trying to understand how they relate.

  1.  E.g., Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (“In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result.”). ↑
  2.  Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015); see also William N. Eskridge, Jr., Interpreting Law 33 (2016) (calling the ordinary meaning canon “[t]he prime directive in statutory interpretation”); Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012) (“The ordinary-meaning rule is the most fundamental semantic rule of interpretation.”). ↑
  3.  E.g., Burns v. Alcala, 420 U.S. 575, 580 (1975). ↑
  4.  E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here . . . the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))). ↑
  5.  Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992). ↑
  6.  Cf. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev
    .

    419, 420 (2005) (“[T]extualism does not admit of a simple definition.”). ↑

  7.  See, e.g., Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev
    .

    1915, 1973–74 (finding from a statistical analysis of the U.S. Reports that the Supreme Court’s use of “plain meaning” and “ordinary meaning” has increased exponentially since the 1970s). ↑

  8.  See 1 William Blackstone, Commentaries *59 (“Words are generally to be understood in their usual and most known signification . . . .”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J.) (observing that a legal text’s “words are to be understood in that sense in which they are generally used by those for whom the instrument was intended”); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev
    .

    417, 417–18 (1899) (positing that legal interpretation asks “what [the] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”). ↑

  9.  Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 23 & n.238 (2022) (documenting how “all current members of the Supreme Court have invoked this rule of ordinary meaning”). ↑
  10.  See, e.g., Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 Case W. Rsrv. L. Rev
    .

    855, 856 (2020) (“Textualism . . . insists that judges must construe statutory language consistent with its ‘ordinary meaning.’”). ↑

  11.  Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev
    .

    213, 217 (2022) [hereinafter Tobia et al., Statutory Interpretation] (finding from a sample of six million cases that “[o]ver the past fifty years, citation to ‘ordinary meaning’ has tripled”). ↑

  12.  See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev
    .

    621, 623–24 (1990) (describing the development in the 1980s of a methodological commitment to enacted text over legislative history as “the new textualism”). ↑

  13.  In 1892, the Supreme Court famously articulated a quite different rule “that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). ↑
  14.  See Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev
    .

    195, 197–98 (1983); cf. Arthur W. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L. Rev. 1299, 1302 (1975) (describing “the refusal of the courts to abandon” the plain meaning rule despite “reports of its death”). ↑

  15.  Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev
    .

    109, 164 (2010); see also John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev

    .

    1287, 1309–10 (2010) (describing the “defining feature of ‘second-generation textualism’” to be the “proposition that courts must respect the terms of an enacted text when its semantic meaning is clear, even if it seems contrary to the statute’s apparent overall purpose”). ↑

  16.  Cf. Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev
    .

    76, 95–97 (2021) (finding that the “text/plain meaning” of a statute was the most used interpretive source other than precedent in a sample of statutory interpretation cases from 2005–2017 Supreme Court Terms). ↑

  17.  Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 8:29–30 (Nov. 17, 2015), https://www.youtube.com/‌wat‌ch?v=dpEtszFT0Tg [https://perma.cc/R67U-65ZS]. ↑
  18.  Indeed, when Justice Kagan later quipped about this remark that “[i]t seems I was wrong,” she was faulting the Court for using a “get-out-of-text-free card[].” West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting); John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev
    .

    113, 129–30 (describing “nontextualist” Justices’ acceptance of the plain meaning rule). On Justice Kagan’s remark and her later retraction, see generally Kevin Tobia, We’re Not All Textualists Now, 78 N.Y.U. Ann. Surv. Am. L. 243 (2023). ↑

  19.  William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev
    .

    1079, 1084–85 (2017) (developing an account of legal canons as part of the unwritten law that governs legal interpretation). ↑

  20.  See sources cited infra notes 310–11. ↑
  21.  William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev
    .

    539, 545 (2017). The wonderful “plain vanilla” example is theirs. ↑

  22.  See infra Part III. ↑
  23.  See Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev
    .

    2193, 2202 (2017) (noting that textualists accept that “terms are sometimes used in their ordinary and sometimes in their technical sense”). ↑

  24. H.R.

    Rep

    .

    No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 3786, 3787. ↑

  25.  Me. Stat. tit. 30, § 6203(8) (2023). The federal Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 3, 94 Stat. 1785, 1786–87 (1980), incorporates the definition from the Maine Implementing Act, Me. Stat. tit. 30, § 6203(8) (2023). See 25 U.S.C. § 1722(i). ↑
  26.  See Penobscot Nation v. Frey, 3 F.4th 484, 491 (1st Cir. 2021) (en banc) (determining from dictionary definitions that it is “clear” that “an island is ‘a piece of land’” and that “[l]and does not ordinarily mean land and water”). ↑
  27.  See Alaska Pac. Fisheries v. United States, 248 U.S. 78, 86–89 (1918) (interpreting a reference to “the body of lands known as Annette Islands” in the statutory definition of the Metlakahtla Reservation and holding that “the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland—in other words, as descriptive of the area comprising the islands”). ↑
  28.  Me. Stat. tit. 30, § 6207(4) (2023). ↑
  29.  Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186 (D. Me. 2015) (“None of those islands contains a body of water in which fish live.”). ↑
  30.  See Penobscot Nation, 3 F.4th at 491 & n.5 (“Because ‘islands’ is an undefined term, we construe it in accordance with [its] ordinary meaning.” (internal quotation marks omitted) (citation omitted)); id. at 493 (citing McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020) (“There is no need to consult extratextual sources when the meaning of a statute’s terms is clear.”)); see also id. at 490–91 (citing additional plain meaning precedents); id. at 496 (“[The statute’s] reference to these treaties does not alter the plain meaning of ‘islands’ and creates no ambiguity.”); id. at 503 (“This canon only applies to ambiguous provisions.”). But see County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985))). ↑
  31.  140 S. Ct. 1731 (2020). ↑
  32.  Id. at 1738 (quoting 42 U.S.C. § 2000e-2(a)(1)). ↑
  33.  Id. at 1754. ↑
  34.  See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (“Bostock revealed . . . important tensions within textualism.”); Ilya Somin, Bostock v. Clayton County and the Debate over the Meaning of “Ordinary Meaning,” Volokh Conspiracy (June 19, 2020, 11:25 PM), https://reason.com/volokh/2020/06/19/bostock-v-clayton-county-and-the-debate-over-the-meaning-of-ordinary-meaning/ [https://perma.cc/ZS6W-YN87] (describing “an interesting dispute over what exactly counts as ‘ordinary meaning’” between Justices Gorsuch and Kavanaugh in Bostock); Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev
    .

    461, 465–72 (2021) (arguing that Bostock revealed competing versions of “empirical textualism”—one focused on “what ordinary people understand [a provision] to mean, applying their own criteria” and the other focused “on the ordinary application of the established legal criterion . . . to interpret and apply the” provision). ↑

  35.  Bostock, 140 S. Ct. at 1741 (“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”). ↑
  36.  Id. at 1750. ↑
  37.  Id. at 1743, 1748–50, 1752. ↑
  38.  Id. at 1751. ↑
  39.  Id. at 1754. ↑
  40.  See infra notes 404–07 and accompanying text. ↑
  41.  Bostock, 140 S. Ct. at 1738. ↑
  42.  See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71–72 (2001). ↑
  43.  Scalia & Garner
    ,

    supra note 2, at 436. ↑

  44.  See, e.g., sources cited infra notes 99, 103, 114–15, 120–22. ↑
  45.  See, e.g., sources cited infra notes 135, 196, 215. ↑
  46.  See Baude & Doerfler, supra note 21, at 545 (noting that “plain” means obvious under the plain meaning rule, as distinguished from its occasional use “to denote something like ordinary meaning”); Eskridge
    ,

    supra note 2, at 33 (“‘Plain meaning’ ought to be reserved for a judicial declaration that there is a clear legal meaning for the provision in question . . . .”); Peter W. Schroth, Language and Law, 46 Am. J. Compar. L. 17, 26 n.41 (Supp. 1998) (“Ordinary meaning seems to differ from plain meaning, in that the former denotes something like ‘the sense this expression usually has in such contexts’ while the latter may require absence of ambiguity.”); Slocum

    ,

    supra note 2, at 23–25 (briefly distinguishing the ordinary meaning canon and plain meaning rule). ↑

  47.  Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev
    .

    726, 736 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 234 n.6 (observing in a footnote “the important point that plain meaning is not equivalent to ordinary meaning”). ↑

  48.  See infra note 84 and accompanying text. ↑

  49.  See Ryan D. Doerfler, How Clear Is “Clear”?, 109 Va. L. Rev. 651, 657–58 (2023); Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev

    .

    1497, 1505–09 (2019). ↑

Vagueness Avoidance

Introduction

It is no secret that legislatures often enact exceedingly broad and indefinite penal statutes1 1.F. Andrew Hessick & Carissa Byrne Hessick, Constraining Criminal Laws, 106 Minn. L. Rev. 2299, 2342 (2022) (“[L]egislatures routinely enact broad criminal statutes that sweep in far more conduct than the perceived problem that motivated the law.”); Carissa Byrne Hessick & Joseph E. Kennedy, Criminal Clear Statement Rules, 97 Wash. U. L. Rev. 351, 360–61 (2019) (describing legislative incentive to write broad and imprecise laws); Kiel Brennan-Marquez, Extremely Broad Laws, 61 Ariz. L. Rev. 641, 658–59 (2019) (“[O]urs is not a world where lawmakers tend to draft well-tailored, proportional statutes. Particularly in the realm of criminal law, the tendency is just the opposite.”); Marc A. Levin, At the State Level, So-Called Crimes Are Here, There, Everywhere, 28 Crim. Just. 4, 6 (2013) (highlighting “the deluge of overly broad and vague criminal laws”).The term “penal statutes” refers both to criminal statutes and to civil statutes that impose some form of penalty on those who violate them. Cf.Wooden v. United States, 142 S. Ct. 1063, 1086 n.5 (2022) (Gorsuch, J., concurring in the judgment) (explaining how the category of “‘penal’ laws” historically “includ[ed] ones we might now consider ‘civil’ forfeitures or fines”); Caleb Nelson, The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2498–500 (2016) (explaining how early courts “often said that penal as well as criminal statutes should be ‘construed strictly’” (quoting United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet.) 453, 462–63 (1833))).Show More that delegate enormous enforcement discretion to prosecutors and police officers.2 2.Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 360–61 (2021) [hereinafter Johnson, Vagueness Attacks] (explaining how indeterminate low-level order-maintenance crimes, “coupled with Fourth Amendment precedents . . . , effectively enable police officers to ‘search and seize whomever they wish’” (quoting William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842, 855 (2001) [hereinafter Stuntz, Transsubstantive Fourth Amendment])); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1664–65 (2010) (noting how legislatures “leave determinations of optimal enforcement to the executive[]” and “purposefully avoid the particulars [when drafting criminal statutes], anticipating case-specific, back-end equitable intervention”); Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 639 (2005) (observing that modern criminal codes “reflect[] a shift of practical authority away from the legislature to prosecutors and police, who now have broad discretion over who gets punished and the level of punishment” so that “[a]rrest, punishment, and the level of punishment are now determined as much by the ad hoc decision-making of individual law enforcement officials as they are by the legal rules”); see William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 547 (2001) (describing dynamics that lead to indeterminate criminal laws).Show More The constitutional void-for-vagueness doctrine promises to provide a check on that practice, at least to the extent sweeping and indeterminate statutory language “fails to give ordinary people fair notice of the conduct it punishes” or “invites arbitrary enforcement.”3 3.Johnson v. United States, 576 U.S. 591, 595 (2015); see also Kolender v. Lawson, 461 U.S. 352, 357–58 (1983) (explaining that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”); Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926).Show More Yet, in most cases presenting such concerns, courts need not strike down the statute as unconstitutionally vague. Instead, they can typically avoid the vagueness conclusion by narrowly construing the indefinite statutory language. This approach—vagueness avoidance—is common and well documented.4 4.See Skilling v. United States, 561 U.S. 358, 405–06 (2010) (“It has long been our practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”); Joel S. Johnson, Vagueness and Federal-State Relations, 90 U. Chi. L. Rev. 1565, 1592 (2023) [hereinafter Johnson, Federal-State] (“In the typical federal-law vagueness case, the Supreme Court engages in vagueness avoidance. It narrowly construes the indefinite law to avoid any constitutional vagueness issues.”); Shon Hopwood, Clarity in American Criminal Law, 54 Am. Crim. L. Rev. 695, 698 (2017) (noting that the Supreme Court “rarely” invalidates “vague federal criminal laws”); Peter W. Low & Joel S. Johnson, Changing the Vocabulary of the Vagueness Doctrine, 101 Va. L. Rev. 2051, 2087 (2015) (observing that the “usual result” in a federal law vagueness case is for the Supreme Court to “avoid[] the problem by a narrowing interpretation”); Cristina D. Lockwood, Creating Ambiguity in the Void for Vagueness Doctrine by Avoiding a Vagueness Determination in Review of Federal Laws, 65 Syracuse L. Rev. 395, 396–97 (2015) (observing that the Supreme Court has “strive[d] to avoid invalidating federal laws as unconstitutionally vague”).Show More But it has never been theorized. This Article takes up that task, articulating a theory of vagueness avoidance as a tool of construction for constraining penal statutes.

Opportunities for its use are many. Each of the last ten Supreme Court Terms, for example, has provided at least one occasion for application of vagueness avoidance.5 5.See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1572 (2023) (avoiding construction that would give federal aggravated identity theft statute “incongruous breadth” and noting a “concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed” (citing Marinello v. United States, 138 S. Ct. 1101, 1106 (2018))); Ruan v. United States, 142 S. Ct. 2370, 2377–78, 2380 (2022) (construing federal drug statute to include a strong scienter requirement, with the effect of narrowing the “vague, highly general language of the regulation defining the bounds of” the proscribed conduct); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (avoiding construction of the Computer Fraud and Abuse Act that “would attach criminal penalties to a breathtaking amount of commonplace . . . activity”); Kelly v. United States, 140 S. Ct. 1565, 1568 (2020) (avoiding construction of federal fraud statutes that would “criminalize all . . . conduct” that involves “deception, corruption, [or] abuse of power”); Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019) (construing the felon firearm statute narrowly to include strong scienter requirement in order to “separat[e] wrongful from innocent acts”); Marinello, 138 S. Ct. at 1107–08, 1110 (“‘exercis[ing]’ interpretive ‘restraint’” to reject broad construction of tax obstruction law that would create “fair warning” concerns by “transform[ing] every violation of the Tax Code into [a felony] obstruction charge” (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995))); Salman v. United States, 580 U.S. 39, 51 (2016) (noting that narrow construction of insider trading statute avoided constitutional vagueness concerns); McDonnell v. United States, 579 U.S. 550, 574, 576–77 (2016) (rejecting “expansive” reading of bribery statute that rendered “outer boundaries” of federal bribery law “shapeless”); McFadden v. United States, 576 U.S. 186, 187, 197 (2015) (adopting a narrow construction of the Controlled Substances Act but declining to rely on vagueness avoidance as a basis for doing so); Burrage v. United States, 571 U.S. 204, 218–19 (2014) (rejecting broad reading that would have violated the principle that criminal laws must be “express[ed] . . . in terms ordinary persons can comprehend”).Show More

To the extent vagueness avoidance has been recognized, however, it has been assumed to be a simple application of ordinary constitutional avoidance.6 6.See, e.g., McFadden, 576 U.S. at 196–97 (treating the avoidance of “vagueness concerns” as a simple application of “the canon of constitutional avoidance,” a “tool for choosing between competing plausible interpretations of a provision” (citation omitted) (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014))).Show More The Court is asked to choose between two or three plausible readings of indeterminate language in a penal statute—each usually having been adopted by some portion of the lower courts—and vagueness concerns are highlighted as a constitutional avoidance reason to reject one reading in favor of another.7 7.See, e.g., supra note 5.Show More Yet the ordinary formulations of constitutional avoidance do not capture what occurs when a court engages in vagueness avoidance.8 8.See infra Part II.Show More

The difference derives from the distinct concepts of ambiguity and vagueness. Ambiguity refers to indeterminacy that arises when a term is open to a “discrete number of possible meanings.”9 9.Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 38–39 (2010).Show More It calls for interpretation that determines semantic meaning. Ordinary constitutional avoidance canons are triggered by ambiguity, and their application points toward semantic meaning that avoids a constitutional infirmity. But vagueness and related indeterminacies in language are not resolved through interpretation; rather, a vague term is open to practically “innumerable possible meanings” or applications10 10.Id.Show More and requires judicial construction to determine legal effect. In other words, the court must craft a supplementary rule of decision to be applied to the facts of the case before it. This fundamental difference calls for a distinct conception of vagueness avoidance.11 11.See infra Part I.Show More

Vagueness and related indeterminacies are ubiquitous in law. But they pose a constitutional concern only in a specific circumstance—namely, when penal statutes contain language so indeterminate that it does not supply a textual basis to define the standard of conduct.12 12.See supra note 3.Show More That creates a constitutional concern because it effectively delegates the legislative task of defining criminal conduct and, in doing so, invites arbitrary enforcement and fails to provide sufficient notice.13 13.See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (explaining that the vagueness doctrine “rests on the twin constitutional pillars of due process and separation of powers,” and that “[v]ague laws . . . undermine the Constitution’s separation of powers” by “threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide”); Johnson, Federal-State, supra note 4, at 26–27.Show More

By engaging in vagueness avoidance, courts can usually defuse the delegation threat posed by vague statutory language while also constraining its reach. Because such language typically has some practically identifiable core, courts may legitimately craft a judicial construction of the text that retains only that core while excising its indeterminate penumbra.14 14.See infra Subsection II.B.2; cf. H.L.A. Hart, The Concept of Law 123 (3d ed. 2012) [hereinafter Hart, Concept of Law] (observing that general rules have an “open texture” or “fringe of vagueness” and describing such rules as having a “core of certainty” and a “penumbra of doubt”); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606–07 (1958) [hereinafter Hart, Positivism] (distinguishing the “core of settled meaning” from the “penumbra of debatable cases”).Show More In doing so, courts do not offend the principle requiring the legislature to define crime and fix punishments,15 15.Jones v. Thomas, 491 U.S. 376, 381 (1989) (making clear that, as a matter of federal law, “the substantive power to define crimes and proscribe punishments” lies with the “legislative branch of government”).Show More because the narrowing construction hews to the identifiable core within the linguistic meaning of the vague term enacted by the legislature. In such circumstances, that act of constraining the legal effect of the vague term often functions as a form of severance—the court declines to endorse the statute’s outer peripheries while simultaneously recognizing that some portion of the statute remains in force and is constitutionally valid.16 16.See infra Subsection II.B.2.Show More

Engaging in vagueness avoidance in this manner also promotes the legality principle in criminal law by preventing retroactive crime definition through judicial innovation.17 17.John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 189–90 (1985) (describing how the legality principle “forbids the retroactive definition of criminal offenses” through “judicial innovation”).Show More Those whose conduct falls within the identifiable core have no claim that they lacked notice, and those whose conduct falls outside it will not be subject to punishment under the narrowly construed statute.18 18.See infra Subsection II.B.2.Show More

This conception of vagueness avoidance is not merely an attractive normative principle. It also has a basis in the Supreme Court’s decisions. Although the Court has never fully articulated the justifications for vagueness avoidance, it has traditionally been explicit about taking that approach in cases involving federal penal statutes with indeterminate language. In 2010, the Court recognized that “[i]t has long been [its] practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”19 19.Skilling v. United States, 561 U.S. 358, 405 (2010); see also United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. . . . And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” (citation omitted)).Show More

In more recent cases, however, the Court has retreated from explicit vagueness avoidance. In these cases of implicit vagueness avoidance, the Court still ultimately adopts a narrowing construction of an indeterminate statutory term, but it purports to justify that result on the basis of mere interpretation that determines semantic meaning, rather than expressly relying on vagueness avoidance as a tool of construction.20 20.See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1563 (2023); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); Kelly v. United States, 140 S. Ct. 1565, 1568–69 (2020); Yates v. United States, 574 U.S. 528, 539–47 (2015) (plurality opinion).Show More The Court sometimes invokes vagueness concerns in these cases. But when it does so, those concerns are not included as an essential component of its reasoning.21 21.See infra Section III.B.Show More

That trend is unfortunate. The Court is treating vagueness avoidance as indistinguishable from ordinary constitutional avoidance, a tool used merely to resolve ambiguity when ordinary tools of statutory interpretation are inadequate to recover semantic meaning.22 22.See infra Section III.B.Show More The Court thus gives vagueness concerns a significantly diminished role—tacking them on as an extra justification for an already-adopted reading,23 23.See, e.g., McDonnell v. United States, 579 U.S. 550, 576 (2016).Show More relegating them to dicta,24 24.See, e.g., Van Buren, 141 S. Ct. at 1661.Show More or not even mentioning them at all.25 25.See, e.g., Ciminelli v. United States, 143 S. Ct. 1121 (2023); Kelly, 140 S. Ct. 1565; Yates, 574 U.S. 528 (plurality opinion).Show More Each of those outcomes renders vagueness avoidance less useful as an analytical matter and less forceful as a doctrinal tool, much like the modern form of the rule of lenity that can be used only in the rare case of “grievous ambiguity” after all other interpretive tools have been exhausted.26 26.Muscarello v. United States, 524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S. 600, 619 n.17 (1994)); see Wooden v. United States, 142 S. Ct. 1063, 1083–86 (2022) (Gorsuch, J., concurring in the judgment) (criticizing the weakening of the rule of lenity); Mila Sohoni, Notice and the New Deal, 62 Duke L.J. 1169, 1205 (2013) (observing that the rule of lenity “los[t] its bite” while Justice Frankfurter was on the Court); Dan M. Kahan, Lenity and Federal Common LawCrimes, 1994 Sup. Ct. Rev. 345, 386; Hessick & Hessick, supra note 1, at 2339 (calling the rule of lenity a “hollow shell of its historic ancestors” that “rarely affects the interpretation of criminal statutes”); see also Joel S. Johnson, Ad Hoc Constructions of Penal Statutes, 100 Notre Dame L. Rev. (forthcoming 2024) (manuscript at 4) (on file with author) [hereinafter Johnson, Ad Hoc Constructions] (observing that the Supreme Court “never firmly relied upon the rule of lenity . . . to justify a narrow construction” of a penal statute over the ten-year period studied).Show More

The practical effect is that the Court’s recent decisions rejecting exceedingly broad lower court readings of federal penal statutes27 27.See supra note 20.Show More do little to deter lower courts from adopting similarly broad constructions in other contexts.28 28.Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 45–49) (explaining how the Court’s ad hoc approach to construing penal statutes “gives lower courts license to adopt sweeping constructions of penal statutes”).Show More Each decision is essentially “ad hoc,” providing no widely applicable principles of construction.29 29.Id. at 4.Show More The lack of controlling principles emboldens prosecutors to continue exploiting indeterminate language in the federal criminal code to “attach criminal penalties to a breathtaking amount of commonplace” conduct.30 30.Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 49–51) (explaining that the Court’s ad hoc approach “invites broad theories of prosecution”).Show More And some lower courts justify those broad applications at the interpretation stage on the basis of the “plain meaning” of the statute’s literal text,31 31.See, e.g., United States v. Dubin, 982 F.3d 318, 325 (5th Cir. 2020), aff’d,27 F.4th 1021 (5th Cir. 2022) (en banc); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 47) (“[T]he Court’s consistent preference for ad hoc constructions [of penal statutes] thus likely yields a lower-court preference” for a “simple ordinary-meaning analysis” that leads to “more broad and literalistic constructions in the lower courts.”).Show More without any real consideration of whether a plain meaning that is open-ended might pose vagueness concerns. As a result, the Supreme Court’s correction of broad lower court readings “has become nearly an annual event.”32 32.Dubin, 27 F.4th at 1041 (Costa, J., dissenting).Show More

The Court should change course by disentangling vagueness avoidance from ordinary constitutional avoidance, explicating it as a robust tool of construction for penal statutes. When applying that tool, the Court should clearly identify the core-penumbra framework exhibited by the vague term, looking to clues from the text or other sources for aid in ascertaining the practically identifiable core. Once that core has been identified, the Court should expressly excise the indeterminate penumbra.33 33.See infra Part IV.Show More

Consistent adherence to that approach would provide a replicable framework for lower courts addressing other penal statutes containing indeterminate language and would encourage prosecutors to adopt charging policies that more readily acknowledge hard limits on the scope of federal criminal laws and expressly prohibit prosecutions beyond those limits.

Robust application of vagueness avoidance would also help answer recent calls by commentators for interpretative tools to reduce the breadth and imprecision of criminal law.34 34.See, e.g., Hessick & Hessick, supra note 1, at 2302–03 (arguing for restoration of the historical practice of construing criminal statutes narrowly); Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L. Rev. 918, 921–24 (2020) (arguing that courts should restore the more robust, historical version of the rule of lenity as a tool for constraining criminal laws); see also Brennan-Marquez, supra note 1, at 656–65 (advocating for due process constraint on overbroad criminal laws that are not necessarily ambiguous or vague).Show More Those commentators have often focused their energy on arguments in favor of something resembling a more muscular version of the rule of lenity—one that is more frequently triggered by ambiguity and that more often “deliberately favor[s] criminal defendants” in constraining those ambiguous criminal laws.35 35.Hessick & Hessick, supra note 1, at 2303 (advocating for “historic rules of constraint”—namely, “interpret[ing] statutes to reach no further than the text or the purpose” and “treat[ing] broadly written laws as ambiguous and in need of narrowing constructions”); see Hopwood, supra note 34, at 921–24 (specifically arguing for a more robust version of the rule of lenity).Show More Making that argument, however, requires them to take on a significant methodological fight, contending that modern courts should loosen their modern textualist or purposivist commitment to implementing the will of the legislature—i.e., faithful agency36 36.See, e.g., John F. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1651 (2001) (contending that the “faithful agent theory” of interpretation derives from “the best reading of the constitutional structure”). Although some scholars debate whether courts should be “faithful agents of the legislature or . . . independent cooperative partners” in interpretation, Kent Greenawalt, Statutory and Common Law Interpretation 20 (2013), the faithful-agent theory is the “conventional” approach. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112 (2010).Show More—so as to accommodate an interpretive approach for criminal statutes that gives systemic preference to defendants’ liberty interests.37 37.See, e.g., Hessick & Hessick, supra note 1, at 2309, 2314 (observing that, because “textualists and purposivists agree that the role of a court in interpreting statutes is to be a faithful agent of the legislature,” courts committed to those methodologies have “not categorically approached the interpretation of criminal statutes differently from the interpretation of other statutes”); see also Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1303 (2018) (finding implementing legislative will to be a common goal among judges).Some have argued that textualism best advances the legislative will. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 7 (2001); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63, 64 (1994); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Court and the Law 3, 17–18 (Amy Gutmann ed., 1997). For a textualist, the legislature’s will is faithfully implemented by adhering to statutory text, with the goal of giving effect to its objective meaning. See, e.g., John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) (“[Textualism] ask[s] how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context.”). Others have argued that purposivism better advances legislative will. See, e.g., Henry J. Friendly, Benchmarks 200–01 (1967) (describing interpretation as “the art of proliferating a purpose” (quoting Brooklyn Nat’l Corp. v. Comm’r of Internal Revenue, 157 F.2d 450, 451 (2d Cir. 1946))); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1113–14 (William N. Eskridge, Jr. & Philip F. Frickey eds., 1994) (arguing that the goal of interpretation is to implement the purpose underlying the law); Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379, 381 (1907) (“The object of genuine interpretation is to discover the rule which the law-maker intended to establish.”). For a purposivist, the primary goal is to implement the “spirit” of the legislative enactment, Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 272 (2020), though statutory text remains key evidence of that sprit. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1283–84, 1296 (2020) (showing that purposivists consider text but “are willing to reject a statute’s seemingly plain meaning when contrary indications of purpose cut strongly against such meaning”).Show More That argument has some normative appeal. But it will not likely gain traction in the current faithful-agent paradigm of statutory construction, which views the rule of lenity as inconsistent with the methodological commitment to implementing the legislative will.38 38.See infra Section II.C.Show More

A robust conception of vagueness avoidance is more promising. It comports with that methodological commitment,39 39.See infra Section II.C.Show More both because it is indisputably rooted in constitutional concerns and because it is not triggered by ambiguity—a type of indeterminacy that can often be resolved through the use of descriptive canons of interpretation and other ways of recovering semantic meaning.40 40.See infra Section I.B.Show More

The Article proceeds in four parts. Part I sets the table by distinguishing between several types of linguistic indeterminacy—ambiguity, vagueness, and contestability—and then describing how those categories closely relate to the important legal-process distinction between interpretation and construction. Part II is the heart of the Article. It builds on the interpretation-construction distinction to articulate a theory of vagueness avoidance that stands apart from ordinary constitutional avoidance. Part III then considers the extent to which that theory aligns with the Supreme Court’s decisions involving vagueness concerns, highlighting a recent and unfortunate trend toward implicit vagueness avoidance. Part IV argues that the Court should restore a more robust version of explicit vagueness avoidance.

  1.  F. Andrew Hessick & Carissa Byrne Hessick, Constraining Criminal Laws, 106 Minn. L. Rev. 2299, 2342 (2022) (“[L]egislatures routinely enact broad criminal statutes that sweep in far more conduct than the perceived problem that motivated the law.”); Carissa Byrne Hessick & Joseph E. Kennedy, Criminal Clear Statement Rules, 97 Wash. U. L. Rev. 351, 360–61 (2019) (describing legislative incentive to write broad and imprecise laws); Kiel Brennan-Marquez, Extremely Broad Laws, 61 Ariz. L. Rev

    .

    641, 658–59 (2019) (“[O]urs is not a world where lawmakers tend to draft well-tailored, proportional statutes. Particularly in the realm of criminal law, the tendency is just the opposite.”); Marc A. Levin, At the State Level, So-Called Crimes Are Here, There, Everywhere, 28 Crim. Just. 4, 6 (2013) (highlighting “the deluge of overly broad and vague criminal laws”).

    The term “penal statutes” refers both to criminal statutes and to civil statutes that impose some form of penalty on those who violate them. Cf. Wooden v. United States, 142 S. Ct. 1063, 1086 n.5 (2022) (Gorsuch, J., concurring in the judgment) (explaining how the category of “‘penal’ laws” historically “includ[ed] ones we might now consider ‘civil’ forfeitures or fines”); Caleb Nelson, The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2498–500 (2016) (explaining how early courts “often said that penal as well as criminal statutes should be ‘construed strictly’” (quoting United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet.) 453, 462–63 (1833))). ↑

  2.  Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 360–61 (2021) [hereinafter Johnson, Vagueness Attacks] (explaining how indeterminate low-level order-maintenance crimes, “coupled with Fourth Amendment precedents . . . , effectively enable police officers to ‘search and seize whomever they wish’” (quoting William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842, 855 (2001) [hereinafter Stuntz, Transsubstantive Fourth Amendment])); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1664–65 (2010) (noting how legislatures “leave determinations of optimal enforcement to the executive[]” and “purposefully avoid the particulars [when drafting criminal statutes], anticipating case-specific, back-end equitable intervention”); Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 639 (2005) (observing that modern criminal codes “reflect[] a shift of practical authority away from the legislature to prosecutors and police, who now have broad discretion over who gets punished and the level of punishment” so that “[a]rrest, punishment, and the level of punishment are now determined as much by the ad hoc decision-making of individual law enforcement officials as they are by the legal rules”); see William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 547 (2001) (describing dynamics that lead to indeterminate criminal laws). ↑

  3.  Johnson v. United States, 576 U.S. 591, 595 (2015); see also Kolender v. Lawson, 461 U.S. 352, 357–58 (1983) (explaining that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”); Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926). ↑

  4.  See Skilling v. United States, 561 U.S. 358, 405–06 (2010) (“It has long been our practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”); Joel S. Johnson, Vagueness and Federal-State Relations, 90 U. Chi. L. Rev

    .

    1565, 1592 (2023) [hereinafter Johnson, Federal-State] (“In the typical federal-law vagueness case, the Supreme Court engages in vagueness avoidance. It narrowly construes the indefinite law to avoid any constitutional vagueness issues.”); Shon Hopwood, Clarity in American Criminal Law, 54 Am. Crim. L. Rev. 695, 698 (2017) (noting that the Supreme Court “rarely” invalidates “vague federal criminal laws”); Peter W. Low & Joel S. Johnson, Changing the Vocabulary of the Vagueness Doctrine, 101 Va. L. Rev. 2051, 2087 (2015) (observing that the “usual result” in a federal law vagueness case is for the Supreme Court to “avoid[] the problem by a narrowing interpretation”); Cristina D. Lockwood, Creating Ambiguity in the Void for Vagueness Doctrine by Avoiding a Vagueness Determination in Review of Federal Laws, 65 Syracuse L. Rev. 395, 396–97 (2015) (observing that the Supreme Court has “strive[d] to avoid invalidating federal laws as unconstitutionally vague”). ↑

  5.  See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1572 (2023) (avoiding construction that would give federal aggravated identity theft statute “incongruous breadth” and noting a “concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed” (citing Marinello v. United States, 138 S. Ct. 1101, 1106 (2018))); Ruan v. United States, 142 S. Ct. 2370, 2377–78, 2380 (2022) (construing federal drug statute to include a strong scienter requirement, with the effect of narrowing the “vague, highly general language of the regulation defining the bounds of” the proscribed conduct); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (avoiding construction of the Computer Fraud and Abuse Act that “would attach criminal penalties to a breathtaking amount of commonplace . . . activity”); Kelly v. United States, 140 S. Ct. 1565, 1568 (2020) (avoiding construction of federal fraud statutes that would “criminalize all . . . conduct” that involves “deception, corruption, [or] abuse of power”); Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019) (construing the felon firearm statute narrowly to include strong scienter requirement in order to “separat[e] wrongful from innocent acts”); Marinello, 138 S. Ct. at 1107–08, 1110 (“‘exercis[ing]’ interpretive ‘restraint’” to reject broad construction of tax obstruction law that would create “fair warning” concerns by “transform[ing] every violation of the Tax Code into [a felony] obstruction charge” (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995))); Salman v. United States, 580 U.S. 39, 51 (2016) (noting that narrow construction of insider trading statute avoided constitutional vagueness concerns); McDonnell v. United States, 579 U.S. 550, 574, 576–77 (2016) (rejecting “expansive” reading of bribery statute that rendered “outer boundaries” of federal bribery law “shapeless”); McFadden v. United States, 576 U.S. 186, 187, 197 (2015) (adopting a narrow construction of the Controlled Substances Act but declining to rely on vagueness avoidance as a basis for doing so); Burrage v. United States, 571 U.S. 204, 218–19 (2014) (rejecting broad reading that would have violated the principle that criminal laws must be “express[ed] . . . in terms ordinary persons can comprehend”). ↑

  6.  See, e.g., McFadden, 576 U.S. at 196–97 (treating the avoidance of “vagueness concerns” as a simple application of “the canon of constitutional avoidance,” a “tool for choosing between competing plausible interpretations of a provision” (citation omitted) (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014))). ↑

  7.  See, e.g., supra note 5. ↑

  8.  See infra Part II. ↑

  9.  Lawrence M. Solan,

     

    The Language of Statutes: Laws and Their Interpretation

     

    38–39 (2010). ↑

  10.  Id. ↑

  11.  See infra Part I. ↑

  12.  See supra note 3. ↑

  13.  See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (explaining that the vagueness doctrine “rests on the twin constitutional pillars of due process and separation of powers,” and that “[v]ague laws . . . undermine the Constitution’s separation of powers” by “threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide”); Johnson, Federal-State, supra note 4, at 26–27. ↑

  14.  See infra Subsection II.B.2; cf.

    H

    .L.A. Hart, The Concept of Law 123 (3d ed. 2012) [hereinafter Hart, Concept of Law] (observing that general rules have an “open texture” or “fringe of vagueness” and describing such rules as having a “core of certainty” and a “penumbra of doubt”); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606–07 (1958) [hereinafter Hart, Positivism] (distinguishing the “core of settled meaning” from the “penumbra of debatable cases”). ↑

  15.  Jones v. Thomas, 491 U.S. 376, 381 (1989) (making clear that, as a matter of federal law, “the substantive power to define crimes and proscribe punishments” lies with the “legislative branch of government”). ↑

  16.  See infra Subsection II.B.2. ↑

  17.  John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 189–90 (1985) (describing how the legality principle “forbids the retroactive definition of criminal offenses” through “judicial innovation”). ↑

  18.  See infra Subsection II.B.2. ↑

  19.  Skilling v. United States, 561 U.S. 358, 405 (2010); see also United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. . . . And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” (citation omitted)). ↑

  20.  See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1563 (2023); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); Kelly v. United States, 140 S. Ct. 1565, 1568–69 (2020); Yates v. United States, 574 U.S. 528, 539–47 (2015) (plurality opinion). ↑

  21.  See infra Section III.B. ↑

  22.  See infra Section III.B. ↑

  23.  See, e.g., McDonnell v. United States, 579 U.S. 550, 576 (2016). ↑

  24.  See, e.g., Van Buren, 141 S. Ct. at 1661. ↑

  25.  See, e.g., Ciminelli v. United States, 143 S. Ct. 1121 (2023); Kelly, 140 S. Ct. 1565; Yates, 574 U.S. 528 (plurality opinion). ↑

  26.  Muscarello v. United States, 524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S. 600, 619 n.17 (1994)); see Wooden v. United States, 142 S. Ct. 1063, 1083–86 (2022) (Gorsuch, J., concurring in the judgment) (criticizing the weakening of the rule of lenity); Mila Sohoni, Notice and the New Deal, 62 Duke L.J. 1169, 1205 (2013) (observing that the rule of lenity “los[t] its bite” while Justice Frankfurter was on the Court); Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 386; Hessick & Hessick, supra note 1, at 2339 (calling the rule of lenity a “hollow shell of its historic ancestors” that “rarely affects the interpretation of criminal statutes”); see also Joel S. Johnson, Ad Hoc Constructions of Penal Statutes, 100 Notre Dame L. Rev. (forthcoming 2024) (manuscript at 4) (on file with author) [hereinafter Johnson, Ad Hoc Constructions] (observing that the Supreme Court “never firmly relied upon the rule of lenity . . . to justify a narrow construction” of a penal statute over the ten-year period studied). ↑

  27.  See supra note 20. ↑

  28.  Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 45–49) (explaining how the Court’s ad hoc approach to construing penal statutes “gives lower courts license to adopt sweeping constructions of penal statutes”). ↑

  29.  Id. at 4. ↑

  30.  Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 49–51) (explaining that the Court’s ad hoc approach “invites broad theories of prosecution”). ↑

  31.  See, e.g., United States v. Dubin, 982 F.3d 318, 325 (5th Cir. 2020), aff’d, 27 F.4th 1021 (5th Cir. 2022) (en banc); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 47) (“[T]he Court’s consistent preference for ad hoc constructions [of penal statutes] thus likely yields a lower-court preference” for a “simple ordinary-meaning analysis” that leads to “more broad and literalistic constructions in the lower courts.”). ↑

  32.  Dubin, 27 F.4th at 1041 (Costa, J., dissenting). ↑

  33.  See infra Part IV. ↑

  34.  See, e.g., Hessick & Hessick, supra note 1, at 2302–03 (arguing for restoration of the historical practice of construing criminal statutes narrowly); Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L. Rev. 918, 921–24 (2020) (arguing that courts should restore the more robust, historical version of the rule of lenity as a tool for constraining criminal laws); see also Brennan-Marquez, supra note 1, at 656–65 (advocating for due process constraint on overbroad criminal laws that are not necessarily ambiguous or vague). ↑

  35.  Hessick & Hessick, supra note 1, at 2303 (advocating for “historic rules of constraint”—namely, “interpret[ing] statutes to reach no further than the text or the purpose” and “treat[ing] broadly written laws as ambiguous and in need of narrowing constructions”); see Hopwood, supra note 34, at 921–24 (specifically arguing for a more robust version of the rule of lenity). ↑

  36.  See, e.g., John F. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1651 (2001) (contending that the “faithful agent theory” of interpretation derives from “the best reading of the constitutional structure”). Although some scholars debate whether courts should be “faithful agents of the legislature or . . . independent cooperative partners” in interpretation, Kent Greenawalt, Statutory and Common Law Interpretation 20 (2013), the faithful-agent theory is the “conventional” approach. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev

    .

    109, 112 (2010). ↑

  37.  See, e.g., Hessick & Hessick, supra note 1, at 2309, 2314 (observing that, because “textualists and purposivists agree that the role of a court in interpreting statutes is to be a faithful agent of the legislature,” courts committed to those methodologies have “not categorically approached the interpretation of criminal statutes differently from the interpretation of other statutes”); see also Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1303 (2018) (finding implementing legislative will to be a common goal among judges).

    Some have argued that textualism best advances the legislative will. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 7 (2001); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63, 64 (1994); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Court and the Law 3, 17–18 (Amy Gutmann ed., 1997). For a textualist, the legislature’s will is faithfully implemented by adhering to statutory text, with the goal of giving effect to its objective meaning. See, e.g., John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) (“[Textualism] ask[s] how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context.”).

    Others have argued that purposivism better advances legislative will. See, e.g., Henry J. Friendly, Benchmarks 200–01 (1967) (describing interpretation as “the art of proliferating a purpose” (quoting Brooklyn Nat’l Corp. v. Comm’r of Internal Revenue, 157 F.2d 450, 451 (2d Cir. 1946))); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law

    1113–14 (

    William N. Eskridge, Jr. & Philip F. Frickey eds.,

    1994) (

    arguing that the goal of interpretation is to implement the purpose underlying the law); Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379, 381 (1907) (“The object of genuine interpretation is to discover the rule which the law-maker intended to establish.”). For a purposivist, the primary goal is to implement the “spirit” of the legislative enactment, Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev.

    265

    , 272 (2020), though statutory text remains key evidence of that sprit. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J

    .

    1275, 1283–84, 1296 (2020) (showing that purposivists consider text but “are willing to reject a statute’s seemingly plain meaning when contrary indications of purpose cut strongly against such meaning”). ↑

  38.  See infra Section II.C. ↑

  39.  See infra Section II.C. ↑

  40.  See infra Section I.B. ↑

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