Thursday, February 5, 2015
Peter W. Low and Benjamin Charles Wood (University of Virginia - School of Law and University of Virginia - School of Law, Alumnus or Degree Candidate Author) has posted Lambert Revisited (Virginia Law Review, Vol. 100 (2014)) on SSRN. Here is the abstract:
Lambert v. California is a fifty-seven-year old canard involving a Douglas-Frankfurter debate in terms that can charitably be called obscure in its reasoning. Many have taken it to involve at bottom a notice principle requiring what this article calls socialization — the idea that to be fair the criminal law should emit warning signals that will alert the conscience of the average citizen to potential illegality. The article explores the consequences of elevating this idea to a freestanding constitutional principle, and rejects that conception of the case because it will insert the Constitution too far into ordinary criminal law doctrine. Instead, the article concludes, even though Lambert involved an ordinance whose language was perfectly clear, the case should be regarded as turning on core vagueness principles. When thought of in this manner, moreover, it can be taken as a partial if not complete elucidation of the “fair notice” branch of that doctrine. A forthcoming article will integrate this insight into a more complete view of the vagueness doctrine itself.