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Textualism as Fair Notice?

Abstract: The opportunity to know the law is one of the bedrocks of legality. It is also a powerful and attractive reason for giving statutory language the meaning it has in everyday discourse. To do otherwise would be to hide the law from those it governs.

Or so the argument goes. Despite its intuitive force, the fair notice argument for textualism is vulnerable to two challenges. The first challenge is to the notion that fair notice requires congruence between ordinary and legal meaning. There is no normative gauge for determining the time and expense people ought to spend learning their legal obligations or the amount of skill they should be expected to possess. And fair notice is not necessarily impaired by recourse to extratextual sources so long as the rules of interpretation tell officials and citizens which materials to consult and which approach to adopt when reading law. The second challenge arises from the relationship between law, morality, and notice. Social expectations and ethical norms may provide the requisite notice. Alternatively, they may render notice less essential. Fair notice is either superfluous or satisfied where the community regards the proscribed behavior as wrongful and the punishment fitting. Conversely, the demands of fair notice are heightened when the behavior reached by the statute is innocuous or when the sanctions for violation are disproportionate.

The vigor of these two challenges is empirically tested through a survey experiment fielded on a probability sample of the United States adult population by the National Opinion Research Center at the University of Chicago. The results indicate that lay judgments of fair notice are influenced by the severity of the legal consequences. They also suggest that conditional on outcome, judicial reliance on legislative purpose and history offends popular notions of fair notice only when the law tells courts to privilege the ordinary meaning of statutes. The findings call into question conventional wisdom about textualism, fair notice, and the rule of law.

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