Vagueness Doctrine Research Articles

The Challenge of Challenging Tax Laws as Unconstitutionally Vague

ABSTRACT Many laypersons (and CPAs and attorneys, for that matter) argue that federal tax statutes and regulations are complex, ambiguous, and vague. However, successfully challenging tax law as unconstitutionally vague has generally not been a successful strategy for taxpayers. In this article, we discuss the void for vagueness doctrine as it has been developed and applied in other areas of the law and review over 40 federal tax cases litigated over the last 20-plus years, in which taxpayers claim that a provision is unconstitutionally vague. Although taxpayer wins are rare, some tax cases find that a statute can be declared overly vague before clarifying regulations or other administrative guidance are issued. Regardless, vague tax laws run afoul of principles of good tax policy. We also provide suggestions for taxpayers and their advisors, who may argue in the future that a federal tax provision is unconstitutionally vague.

EQUALITY IN THE STREETS Using Proportionality Analysis to Regulate Street Policing

EQUALITY IN THE STREETS Using Proportionality Analysis to Regulate Street Policing

Due Process Overbreadth? The Void for Vagueness Doctrine, Fundamental Rights, and the Brewing Storm over Undefined Consent in Sexual Assault Statutes.

This Article, contributed to a symposium on Commerce, Institutions, and Consent held at the University of Oklahoma Law School on October 19th, 2019, explains how three distinct legal developments are on a collision course. The criminal law of sexual assault has evolved to focus primarily on negative sexual autonomy, but there is no normative consensus on just what “consent” means, nor does typical statutory language suggest considered legislative choice from among the possible meanings. Meanwhile, time has reinforced the Supreme Court’s elevation of positive sexual autonomy above ordinary constitutional interests in Lawrence v. Texas. Finally, the Court’s decisions in Johnson and Dimaya have resolved decades of uncertainty in favor of a robust version of the void-for-vagueness doctrine. Conclusory statutory condemnations of sex without consent therefore have become plausible targets of facial constitutional challenges. The Article discusses the looming collision and offers ways to mediate the emerging conflicts among the values of negative autonomy, positive autonomy, and legality.

보충적 과세가격 결정방법을 통한 관세포탈죄의 처벌에 관한 연구 – 대법원 2016. 10. 27. 선고 2014도16271 판결을 중심으로

In the Pulmuone Customs Duty case(Supreme Court of Korea, Decision of 27 December 2016, 2014Do16271), the Supreme Court of Korea decided that the customs valuation method for the offense of evading customs duties must not have to be based on the transaction value. Since the WTO Customs Valuation Agreement declares that the primary basis for customs value is transaction value under Article 1, this decision arises a question that whether the defendant can be indicted for the offense of customs duties evasion without calculation of the amount of the evasion by using customs valuation method 1. This paper analyzes the case in the view of the principle of the WTO Customs Valuation Agreement and the rule of Tax Evasion of Korea Punishment of Tax Offenses Act. The prosecutor may use customs valuation method 2 through 6 under the Korea Customs Act and the WTO Customs Valuation Agreement to calculate the amount of the evasion. However, the Courts should judge the prosecution by the vagueness doctrine and the prosecutor’s burden of proof under the principle of nulla poena sine lege.

Void the Analogue Act

This article defends Justice Neil Gorsuch’s suggestion that the Federal Analogue Act (“Analog Act”), a statute criminalizing all substances “substantially similar” to Schedule I and II narcotics, should be voided for vagueness using the same rationale employed by Johnson v. United States. This article also explores alternative rationale sfor voiding the statute as unconstitutionally vague. Whether under Johnson or traditional void for vagueness doctrine, the Analog Act fails to satisfy criminal due process requirements. In its attempt to draft a law broad enough to prospectively criminalize all possible future narcotics, Congress created a statute so vague as to prevent any advance knowledge of the substances criminalized while also leaving every substance in a superposition of legal states as both legal and illegal. “Substantially similar” possesses no statutory or scientific definition, leading juries to routinely reach opposite conclusions on the same substance’s legality and depriving defendants of advance notice. No scienter requirement cures this vagueness. In McFadden v. United States, the Supreme Court’s attempt to resolve the decades’ old scienter circuit split effectively opened the permissible range of scienter so wide as to permit prosecutions for mundane substances: possessing chocolate while knowing it contains a controlled substance analog permits prosecution for methamphetamine possession. The Analog Act’s vagueness and narrow scope also frustrate prosecutions for even the most dangerous analogs, a failure hobbling law enforcement and directly contributing to the proliferation of synthetic cannabis, the MDMA-like “bath salts,” fentanyl analogs, and the coming crisis of unregulated benzodiazepines. Yet at the same time the Analog Act’s great breadth threatens the emerging hemp industry by criminalizing CBD and other cannabinoids intended by Congress to be exempt from criminal restrictions. As illustrated by Congress’s synthetic cannabis legislation and the DEA’s categorical ban on fentanyl analogs, the Analog Act has long outlived its marginal value as flexible modern substance-specific prohibitions protect against emerging psychoactive substances without trampling constitutional protections.

Looking Ahead at Vagueness Claims in the Immigration Context Post-Dimaya

In these remarks delivered during a symposium on immigration policy under the Trump Administration, I discuss the purpose of the void for vagueness doctrine and how immigration claims might be viewed following the Supreme Court’s 2018 decision in Sessions v. Dimaya.

United States v. Matchett (11th Cir.) -- Brief of Law Professors as Amicus Curiae in Support of Defendant-Appellant

Section 4B1.2(a)(2) of the U.S. Sentencing Guidelines is identical to statutory language that the U.S. Supreme Court found to be unconstitutionally vague in Johnson v. United States. The panel in this case held that, although 4B1.2(a)(2) is identical to the language from Johnson, it is not unconstitutionally vague because the vagueness doctrine does not apply to the now-advisory Federal Sentencing Guidelines. This brief explains why the panel decision is inconsistent with Supreme Court decisions on the vagueness doctrine and the Sentencing Guidelines.

Statutory Language and the Separation of Powers

Traditional separation of powers models assert that the Supreme Court takes into consideration the policy preferences of other institutions and behaves strategically so as to place legal policy at its preferred policy point. The vagueness doctrine, however, asserts that the Court determines statute constitutionality not from strategically calculating institutional ideological preferences but from the degree of specificity of the statute's language itself. This study finds that the vagueness doctrine better predicts Court declarations of unconstitutionality than preference-based models, suggesting that the language of the law itself is crucial to statutory decisions.

Changing the Vocabulary of the Vagueness Doctrine

The void-for-vagueness concept is itself indefinite, and the language of the doctrine exacerbates the problem. This article addresses situations where the doctrine has been used to invalidate criminal statutes that do not implicate specially protected constitutional rights. Its thesis is that application of the vagueness doctrine in this context can be understood as based on one or both of two constitutional requirements, and that they provide a better explanation for the results than traditional rhetoric. The two principles are: all crime must be based on conduct; and there must be a defensible and predictable correlation between the established meaning of a criminal prohibition and the conduct to which it is applied. The article begins by tracing the ori- gins of these two principles and then illustrates their explanatory power in two state cases — Lanzetta and Papachristou — and two federal cases — Skilling and Screws. Additional factors extraneous to the vagueness doctrine itself, however, often control the outcome in vagueness cases. This proposition is illustrated by two state cases — Morales and Kolender — and one federal case — Johnson v. United States.

Effective or symbolic? Testing the constitutionality of the Matthew Shepard and James Byrd Hate Crimes Prevention Act

In an effort to reduce violent acts of discrimination against members of the lesbian, gay, bisexual and transgender community, President Obama signed the Matthew Shepard and James Byrd Hate Crimes Prevention Act into law on 28 October 2009. The Act has been both praised and criticized for expanding the list of protected classes of hate crime victims to include sexual orientation, gender, gender identity and disability. Indeed, the Act was passed after a heated debate regarding its constitutionality. This paper therefore explores whether this Act would be able to withstand a constitutional challenge. Rulings by the US Supreme Court are analyzed to evaluate the validity of claims articulated during the hearings as well as testimony given in the debates leading to the passage of the Act. The analysis also relies on other cases and current hate crime state statutes. Findings suggest that because the Act does not define certain key terms, it might not pass a constitutionality test on the basis of the vagueness doctrine.

Fool Me Once: U.S. v. Aleynikov and the Theft of Trade Secrets Clarification Act of 2012

This Note analyzes the effect of the Theft of Trade Secrets Clarification Act (TTSCA), and argues that Congress should continue to cast a watchful eye on the Economic Espionage Act (EEA). Section I examines the EEA in detail, including its rocky history with the void for vagueness doctrine. Section II details the plight of Sergey Aleynikov and his arduous path through the federal court system, culminating in his recent arrest under New York State law. Section III examines the TTSCA’s scope and the unintended concomitant confusion it created in Agrawal — tried under one version of the EEA, but likely to be decided under another ex post facto. Finally, Section IV analyzes potential outcomes in the Agrawal case and argues that federal preemption is crucial to the healthy operation of the EEA. In order to ensure justice under the EEA, federal preemption — rather than the uncertainty of a mixed bag of state statutes — is necessary.

Copyright and the Vagueness Doctrine

The Constitution's void-for-vagueness doctrine is itself vaguely stated. The doctrine does little to describe at what point vague laws-other than those that are entirely standardless-become unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three collateral factors that affect its inclination to invalidate a law for vagueness: (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Measured against these factors, copyright law does not meet the vagueness doctrine's minimum requirement of fair notice to the public. Copyright, by its terms, restricts free speech, and the law's prolixity frustrates ex ante assessment of what speech is lawful. In addition, substantial similarity and fair use, the very provisions of copyright law that are generally held to rescue it from overbreadth, themselves admit considerable uncertainty into the infringement analysis. That substantial, extracompensatory damages are available against infringers, regardless of their state of mind, renders the copyright laws still more problematic under the vagueness doctrine. This Article argues that although a case can be made that the copyright laws are unconstitutionally vague, invalidation of all or any portion of the Copyright Act is unlikely and not constructive. Reforms undertaken specifically to cure copyright's indeterminacy are not likely to be effective, either. However, a consideration of the vagueness doctrine's collateral factors and how they apply to copyright suggests an appropriate reform of the law. For cases involving expressive use of copyrighted content, lawmakers should adopt a three-tiered system of civil infringement liability by which strict liability is preserved in cases brought for injunctive relief only, while suits for statutory and actual damages require proof of willful and negligent infringement, respectively.

Copyright and the Vagueness Doctrine

The Constitution’s void-for-vagueness doctrine is itself vaguely stated. The law does little to describe at what point vague laws - other than those that are entirely standardless - might be unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three that affect its inclination to invalidate a law for vagueness, including (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Against this backdrop, it is fair to say that copyright law, in its current configuration, does not meet the vagueness doctrine’s minimum requirements of fair notice to the public. Copyright by its terms restricts free speech; the law’s prolixity frustrates ex ante assessment of what speech is lawful. The question whether speech infringes copyright requires reference to a multiplicity of top-level interlocking questions or doctrines - each with its own manifold of subsidiary legal issues. Still more troubling is the uncertainty that inheres in substantial similarity and fair use, the very copyright doctrines that are generally held to rescue copyright from charges of First Amendment overbreadth. This Article argues that although a case can be made that copyright is unconstitutionally vague, invalidation of all or any portion of the Copyright Act is unlikely and not constructive. Reforms undertaken specifically to cure copyright’s indeterminacy are not likely to be effective, either. However, a consideration of the vagueness doctrine’s collateral factors and how they apply to copyright suggests an appropriate reform of the law. For cases involving expressive use of copyrighted content, lawmakers should adopt a three-tiered system of civil infringement liability by which strict liability is preserved in cases brought for injunctive relief only, while suits for statutory and actual damages require proof of willful and negligent infringement, respectively.

Reconceptualizing Vagueness: Legal Rules and Social Orders

'[I]ndefiniteness' is not quantitative concept.' The void for vagueness doctrine is traditionally understood as concerned with the capacity of legal rules to control conduct. The doctrine underwrites the clarity of the law's distinction between acceptable and forbidden behavior, so as both to guide the actions of citizens and to restrict the discretion of government officials. In the words of recent Supreme Court decision, the doctrine, [a]s generally stated,... requires that penal statute define the criminal offense with sufficient that ordinary people can understand what conduct is prohibited and in manner that does not encourage arbitrary and discriminatory enforcement.2 The traditional account of void for vagueness doctrine thus focuses on the nature of legal rules. It invites us to perceive the question of vagueness as continuous variable, as a matter of degree,3 so that one can speak of rule as having more or less definiteness and therefore as exercising more or less control over government caprice and citizen conduct. For this reason an unconstitutionally vague statute can be rewritten so as to be clearer or more precise. Hence vagueness analysis is said to address itself to the form of regulation, without reference to the ultimate amenability to regulation of its subject.4 I do not mean to deny that this traditional image of vagueness doctrine is often valid and appropriate. But I wish in this Essay to call attention to significant class of cases in which this image is inaccurate and misleading. In these cases courts do not use vagueness doctrine to focus on the isolated properties of legal rules, but rather to analyze the relationship between legal rules and forms of social order. My hypothesis is that different kinds of legal rules presuppose and instantiate different forms of social order, and that vagueness doctrine is frequently employed to distinguish among the

Is the Internal Revenue Code Void for Vagueness? A Look at Some Economic, Legal and Ethical Issues

Anyone who has ever had to fill out a fairly complicated federal income tax return without having the benefit of having passed the CPA exam or without having completed a masters degree in taxation might easily ask himself the question - Is the Internal Revenue Code void for vagueness? The temptation may very well be to say yes, but the answer to that question is much more complicated than that. This paper looks at the void for vagueness doctrine, then examines some of the problems with the current Internal Revenue Code to see if the void for vagueness doctrine is - or should be - applicable.

Weighing the Value of Vagueness: An Economic Perspective on Precision in the Law

Economics does not have an epistemology. Actors in an economic model know what they know by assumption. Even when there is uncertainty in the economic world, economic actors are presumed to know precisely the shape of that uncertainty. It might seem, then, that economists would have little to add to our understanding of the philosophical and psychological questions of what makes law sufficiently definite to command compliance. Yet, on some reflection and with characteristic hubris, it is possible for an economist to find a contribution to make, largely by exploiting the well-worn economic framework that asks the following: How do different types of legal rules influence behavior? What are the costs and benefits of a particular legal rule or doctrine? Applying this economic framework can shed substantial light on the questions raised by vagueness: How does the precision of law influence behavior? How does it affect the justification for the exercise of legal authority? Insight into these questions comes largely from economics' formalization of the concept of uncertainty. In this Paper I demonstrate how an economic analysis of uncertainty illuminates some of the behavioral assumptions animating vagueness doctrine. I then examine how economics facilitates a systematic exploration of the implicit balancing of costs and benefits inherent in legal decisions applying a vagueness analysis.

Vagueness Doctrine in the Federal Courts: A Focus on the Military, Prison, and Campus Contexts

Vagueness Doctrine in the Federal Courts: A Focus on the Military, Prison, and Campus Contexts