Tuesday, November 8, 2016
Anthony O'Rourke (University at Buffalo Law School) has posted Textual Vagueness and Institutional Divergence in Constitutional Decisionmaking (William & Mary Bill of Rights, Forthcoming) on SSRN. Here is the abstract:
Constitutional scholars often assume that vague textual provisions cannot meaningfully constrain constitutional decisionmaking. Recent scholarship at the intersection of legal philosophy and philosophy of language provides the conceptual tools necessary to challenge that assumption. Building on that scholarship, this Article argues that semantically vague constitutional provisions shape the decisionmaking of both courts and legislatures in ways that heretofore have been ignored.
The Article identifies a systematic divergence between how courts and legislatures implement vague constitutional provisions. Whereas courts often implement such provisions by creating multi-factor standards, legislatures tend to do so by enacting relatively precise rules.