Andrew Jensen Kerr (Peking University School of Transnational Law) has posted Void-for-Vagueness as a Legal Process Contradiction (University of Louisville Law Review, Vol. 61, No. 2, 2023) on SSRN. Here is the abstract:
I argue that void-for-vagueness should be unmoored from its tenuous constitutional due process architecture and reconceptualized as a substantive principle, one rooted in the fundamental legal process value of separating legal framing from fact determination. In doing so, I challenge the recent Supreme Court decisions of Johnson v. United States (2015) and United States v. Davis (2019). Void-for-vagueness has been consistently criticized as a protean doctrine without form or scope. It is broadly about notice, but so are other criminal justice principles that remain un-constitutionalized, like retroactivity or legislativity. What makes void-for-vagueness unique from these principles is that it concerns published statutes that are thought to be layered or too capacious. Still, I point out that we live in a legal system that defers to triers of fact about how to make sense of broad, yet clear, legal instructions. As enjoined by Justice Holmes, all criminal defendants must guess as to how their conduct will be interpreted and taxonomized by a juror.
I reconcile void-for-vagueness on its own terms to show how it best functions. It is canonically described as resting on two independent jurisprudential bases: notice and arbitrary enforcement. I argue that these are instead integrated in a very specific way: a statute (or application of a statute) must be held vague when a defendant is unaware of how to conduct herself for a situational actor who can make an authoritative characterization about her supposed unlawful behavior. Situational actors have commonly been reduced to police, and this gives these situations the valence of a constitutional problem. But my argument shows–consistent with prior case law–that we are also concerned with victims as law-fact characterizers, and that this paired concern makes it more broadly about legal process. Finally, I build on the recent theorizing of Joel Johnson to integrate void-for-vagueness with mistake analysis in criminal law.