Volume 110

Making Section 1983 Malicious-Prosecution Suits Work

The Supreme Court can’t seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, but lack of proper focus. The Court first endeavored to identify the proper constitutional source of a malicious-prosecution right, all the while failing to consider the more practical problems that make Section 1983 malicious-prosecution claims nearly impossible to win.

The Court seemed to reverse its course in Thompson v. Clark, eschewing big constitutional questions in favor of a narrow, practical one. This Note applauds that turn in spirit. But it seems that the Court overcorrected by choosing too small of a question. This Note contributes the first postmortem of Thompson and finds that a year later, the lower courts look like nothing ever happened: almost every Section 1983 malicious-prosecution case since has been dismissed for reasons unrelated to Thompson’s favorable-termination rule.

What if instead of asking questions too big to be practically impactful, or too small to do much work on their own, we found the questions that are “just right”? This Note identifies these questions by analyzing remaining splits in the lower courts and where those splits overlap with the issues killing otherwise meritorious Section 1983 malicious-prosecution claims. By asking and answering the right questions, this Note constructs a version of Section 1983 malicious prosecution that could work in real life.

Introduction

How do you define a right if you aren’t sure it exists? The right to be free from malicious prosecution has remained elusive despite decades of judicial and scholarly attention. Some still debate whether it even exists, and many more argue that it should not. The constitutional malicious-prosecution claim often brought under Section 1983 is something of an enigma—despite the name, the claims generally are not brought against prosecutors, and they rarely involve malice in an ordinary sense. Rather, they are part of the family of constitutional torts aimed at addressing police misconduct—here, for initiating criminal prosecutions without probable cause.

These lawsuits serve two critical roles. First, they provide redress for the harms uniquely associated with enduring a criminal prosecution, namely, being deprived of rights “to make basic decisions about the future; to participate in community affairs; to take advantage of employment opportunities; to cultivate family, business, and social relationships; and to travel from place to place.”1 1.Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting).Show More And second, because malicious-prosecution claims are not ripe until favorable termination—which occurs when a prosecution ends without a conviction2 2.Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022).Show More—they may extend the timeframe to bring civil-rights suits. Because companion constitutional torts generally accrue much earlier,3 3.If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination).Show More malicious-prosecution suits give a person more time to vindicate at least some of their rights.4 4.Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months).Show More

But regardless of how important they are in theory, in practice, these suits rarely succeed. Despite significant debate over the proper constitutional home of malicious prosecution,5 5.See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”).Show More there is little clarity on its practicalities: after thirty years of effort, an “embarrassing diversity of judicial opinion” remains.6 6.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.).Show More In Albright v. Oliver,7 7.510 U.S. 266 (1994) (plurality opinion).Show More and again nearly twenty-five years later in Manuel v. City of Joliet,8 8.580 U.S. 357 (2017).Show More the U.S. Supreme Court made its first error: by focusing only on whether malicious prosecution is properly housed in the Fourth or Fourteenth Amendment, the Court twice missed its chance to intervene in any practical sense. Both decisions had shockingly little real-world impact.9 9.See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel).Show More But two years ago, in Thompson v. Clark,10 10.142 S. Ct. 1332 (2022).Show More the Court made a new kind of error: by failing to address the most important problems in Section 1983 malicious-prosecution litigation, the Court issued an ostensibly good decision that, as this Note discovers, also failed to make much of a difference.11 11.See infra Section II.C.Show More At each turn, the Court has failed to identify the sources of malicious prosecution’s challenges and thus has failed to provide solutions tailored to those core problems. This Note fills that gap.

By exploring for the first time how the U.S. Courts of Appeals have responded to Thompson, this Note identifies two primary issues. First, in the wake of Thompson, the high-level disagreement that Judge Posner called “embarrassing”12 12.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992).Show More endures.13 13.See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim.Show More Here, “[v]aried interpretation of federal constitutional law raises . . . troubling[] questions,” and nonuniformity has had tangible consequences.14 14.See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake).Show More The details of these claims diverge wildly depending on the circuit, and even within circuits, so plaintiffs—many of whom are not represented by counsel15 15.See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases).Show More—have little chance of figuring it out. Specifically, there is significant disagreement on the two usual elements of a Section 1983 malicious-prosecution claim that most often prove fatal: probable cause and malice. The initiation of criminal charges without probable cause is the “gravamen” of malicious prosecution,16 16.Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022).Show More but there is little clarity on what probable cause is relevant.17 17.There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280.Show More Because malicious-prosecution defendants are typically police officers or investigators, and not those directly responsible for decisions to prosecute,18 18.SeeImbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits).Show More it can be hard to parse whose decisions—and which of those decisions—matter. Lack of malice, while not always even an element of malicious prosecution, can serve as a nearly insurmountable barrier to plaintiffs.

Second, because the Court has never directly considered what the “seizure” in a malicious prosecution is, some lower courts have artificially narrowed Section 1983 malicious-prosecution claims to encompass only suits where the plaintiff was detained. This misunderstands the harm of a malicious prosecution and closes courthouse doors to individuals whose constitutional rights have been violated. Although we more often think of trans-substantive doctrines like qualified immunity as limitations on the availability of damages remedies, here we see remedial access limited through a restrictive framing of the substantive right itself.19 19.See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”).Show More

Answering these questions the right way could produce the result the Court’s repeated efforts would suggest it desires—a settled doctrinal framework for malicious-prosecution claims brought under Section 1983. And more importantly, clarifying the scope of malicious-prosecution claims should cure the notice issues and inconsistencies that make them harder to win than they should be. Maybe the fourth time could be the charm?

This Note explores these questions through three Parts. Part I will discuss the Court’s historical efforts to determine where a right to be free from malicious prosecution is located in the Constitution, a project that failed to yield doctrinal stability. Part II will provide the first postmortem of Thompson—a case that, promisingly, addressed a narrow, technical aspect of Section 1983 litigation—and explore its (limited) impacts on the lower courts. Part III will answer the questions at the root of Section 1983 malicious prosecution’s problems—those identified in Part II. This Note thus has two primary contributions: first, it provides a descriptive account of the lower courts after Thompson, which both makes evident the Court’s failure in problem identification and identifies the right problems to address next; and second, through answering the questions left open after Thompson, it provides the first account of malicious prosecution that solves the meaningful practical problems that have, until now, gone unaddressed. The goal of this Note is simple: to make Section 1983 malicious-prosecution suits work.

  1.  Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting). ↑
  2.  Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022). ↑
  3.  If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination). ↑
  4.  Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months). ↑
  5.  See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”). ↑
  6.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.). ↑
  7.  510 U.S. 266 (1994) (plurality opinion). ↑
  8.  580 U.S. 357 (2017). ↑
  9.  See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel). ↑
  10.  142 S. Ct. 1332 (2022). ↑
  11.  See infra Section II.C. ↑
  12.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992). ↑
  13.  See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim. ↑
  14.  See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake). ↑
  15.  See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases). ↑
  16.  Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). ↑
  17.  There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280. ↑
  18.  See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits). ↑

  19.  See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”). ↑

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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