This Article is the first of a two-part series on the vagueness doctrine. The objective of this first step is to situate the well-known Lambert case within that doctrine. Lambert v. California is a fifty-seven year-old chestnut involving a Douglas-Frankfurter debate in terms that can charitably be called obscure. Many have taken the case to involve, at bottom, a notice principle requiring what this Article calls socialization—the idea that to be fair the criminal law should emit warning signals that will alert the conscience of the average citizen to potential illegality. The Article explores the consequences of elevating that idea to a freestanding constitutional principle, and rejects that conception of the case because it would insert the Constitution too far into ordinary criminal law doctrine. Instead, the Article concludes, even though Lambert involved an ordinance whose language was perfectly clear, the case should be regarded as turning on core vagueness principles. When thought of in this manner, moreover, it can be taken as a partial, if not complete, elucidation of the “fair notice” branch of that doctrine. The second Article in the series will integrate this insight into a more complete view of vagueness itself.
Issue 8
To Say What The Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis
Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions—Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal—turn this conventional wisdom on its head. In both cases, what the Court said about the governing rules was not inherently controversial, and would leave courts with considerable flexibility going forward. But what the Court did in applying those rules—the ultimate results in Wal-Mart and Iqbal—could be very destabilizing if stare decisis mandates consistency with those results in future cases.
This article assesses competing approaches to stare decisis, and argues that the lawmaking content of a judicial decision should be only the rules that the court states in deciding the case. While the end result may be instructive, enlightening, or valuable for any number of reasons, it should not create binding obligations on future courts as a matter of stare decisis. A rules-only approach is an unconventional position (even those who favor rule-based stare decisis typically presume that consistency with results is also required). But it strikes the optimal balance. To infer binding obligations from results alone creates a risk that—as with Wal-Mart and Iqbal—future courts will be forced to intuit more radical legal changes than the precedent-setting court actually embraced. Put simply, a judicial decision should create binding law only to the extent that it says what the law is. Unless and until new legal rules are declared (whether by the judiciary in later cases or by legislation), courts should be free to operate within the existing legal framework, without being required to reconcile their decisions with the mere results of earlier ones.