Generic – Vague Mandates 1 of 1
Generic – Vague Mandates
Strategy Notes 3
Opening Quotes 5
DEFINITIONS: 6
1. Definition of word: Vague 6
2. Vagueness in the law 6
STANDARDS: 7
1. Void-For-Vagueness definition 7
2. Vagueness Doctrine 7
3. Fairness Doctrine (Criminal Law Specifically) 8
Void for Vagueness Doctrine Inherency 9
1. Void for Vaugness should apply to more than criminal law 9
Examples of Vague Law 10
1. Examples of the Devastation of Vague Laws 10
2. Examples - Chicago v. Morales - Vagueness argued to protect state law 10
3. Soviet Union vague laws harmful to citizens 11
4. Man wrongfully convicted b/c of vague laws 11
5. Ignorance of true needs led to vague law 11
General Cards- Vague Laws Shouldn’t be Passed 12
1. In Criminal Law - time to halt vague laws 12
Vague Laws - Disadvantages or Effects 13
A. Vague Laws Fail to Warn, Encourage Arbitrary Enforcement, Inhibit Freedom 13
1. All Vague laws involve three basic dangers 13
B. Impede on Individual Rights 13
2. They impede on individual rights and economic freedom. 13
3. Vague Laws violate basic premise of 14th amendment 14
C. Vague Laws will be Misinterpreted / Interpreted by Wrong Officials 14
4. Vague Laws delegate to wrong officials 14
5. Vagueness laws will be interpreted by the Supreme Court. Usually differently than originally intended. 14
6. Vague laws can be become common law concepts 15
D. Unenforceable- Citizen Non-Compliance 15
7. Individuals Likely to Break Laws they View as Non-Important 15
8. Uncertainty fosters non compliance 16
9. Uncertainty affects response to law (Behavioral Consequences) 16
E. Unenforceable- May be Declared Invalid by Court 16
10. Inappropriate policy will be struck down or misconstrued 16
F. Unenforceable- Citizens Confused by the Law Unlikely to Uphold it 17
11. Vague Laws are Fundamentally wrong to enforce 17
Strategy Notes
You can use this brief when you’re up against a case where you don’t entirely understand the mandates. This can be because the mandates themselves are vague (“create a refugee plan”), or because the mandate passes a different plan (“Pass the Privacy Act! We have it with us, and it’s only one hundred pages long, so you can read it at the prep table!”).
This brief originally included a section on what ‘good policy’ is, as opposed to vague policy. However, this section grew to be so long that it really warranted its own brief. When you use this brief, look for the companion brief “Good Policy Criteria’. While this brief deals specifically with vague mandate causes and harms, that brief will provide more causes of poor policies and some different harms. This brief is to be used specifically in the context of vague mandates.
The brief starts out with simple definitions, standards and examples by which you can tell if a policy is vague. This is mostly for the benefit of the reader, rather than for use in a round. However, these cards are all cut to an in-round standard in the event that they will be needed.
The real juice of the brief is in the disadvantages section. The first section is a general card that is short and easy to understand, stating quite plainly that vague mandates are terrible ideas. The brief then goes on to another generalized card, which discusses the harms of vague mandates in more depth, but while keeping it short.
After that, the brief delves into more in-depth discussion. It first discusses how vague laws impede freedom. The logic runs like this- if the law comes with strict penalties, but people don’t understand it, they will take extra steps to avoid violating it. They may go further than necessary, avoiding even actions which the law does not necessarily forbid, thus violating liberty.
The brief then goes on to talk about how vague laws will be later misinterpreted, or interpreted by the wrong officials, leading to terrible precedent for future law. So even if a law isn’t bad to start out with, vague mandates may lead to unintended misinterpretations.
Next we go onto a solvency point. Namely, that vague laws are inherently unenforceable. The first point under this topic explains that citizens are unlikely to follow laws that won’t have large consequences- if a vague law is not well understood or is thought to be unimportant, it will not be followed. Don’t run this argument alongside the rights argument, since they would contradict each other.
The next unenforceability point discusses how vague laws may be struck down by SCOTUS in future years, making the law truly unenforceable. Finally, the brief concludes by discussing accidental law violations caused by vague laws, where individuals may be punished for a crime they did not intend. This argument comes with much emotional-appeal, since it’s wrong on a fundamental level and violates both the concept of rights and of rule of law.
My the force be with you and all that jazz.
Opening Quotes
James Madison, http://www.washingtonpost.com/blogs/post-partisan/post/pelosi-defends-her-infamous-health-care-remark/2012/06/20/gJQAqch6qV_blog.html
“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
Nancy Pelosi, http://www.washingtonpost.com/blogs/post-partisan/post/pelosi-defends-her-infamous-health-care-remark/2012/06/20/gJQAqch6qV_blog.html
“But we have to pass the bill so that you can find out what’s in it!”
DEFINITIONS:
1. Definition of word: Vague
(http://research.lawyers.com/glossary/vague.html)
Definition - adj
a. characterized by such a lack of precision that a person of ordinary intelligence would have to guess if particular conduct is being proscribed
b. characterized by a failure to describe forbidden conduct in terms sufficient to provide fair warning
2. Vagueness in the law
Scott Soames (professor of philosophy at the University of Southern California; specializes in the philosophy of language and the history of analytic philosophy), 2012, “The Routledge to the Philosophy of Law,” USC Research Computing Facility, http://www-bcf.usc.edu/~soames/sel_pub/Vagueness_and_the_Law.pdf [Ethos]
Since vagueness in the law comes in different forms with different consequences, some preliminary distinctions are needed to narrow our focus. Three domains of legal vagueness are particularly important: vagueness in the content of the law, vagueness in the allowable evidence and prescribed procedures used in reaching a legal verdict, and vagueness in the enforcement or effect of the laws. A good example of the latter is the enforcement of the 65-mile-per-hour speed limit on freeways in southern California. Though the content of the law is precise, the practice of enforcing it includes a range of speeds of roughly 66-70 miles per hour at which whether or not one is stopped is (under normal conditions) a matter of substantial discretion on the part of the highway patrol. The effect is to create a range of borderline cases in which it is vague whether, and to what extent, drivers are in legal jeopardy. This sort of vagueness – which has no effect on the content of the law – is valuable and necessary both to allow law-abiding citizens a reasonable margin for error in their attempts to comply with the law, and to allocate the resources of law enforcement and the judiciary reasonably and efficiently
STANDARDS:
1. Void-For-Vagueness definition
uslegal.com - http://definitions.uslegal.com/v/void-for-vagueness/
Void for vagueness refers to a concept in American Constitutional law declares a law void and unenforceable if it is too vague for an average citizen to understand. This concept is derived out of the due process clause of the fifth and the fourteenth amendment to the U.S. Constitution. The concept requires criminal laws to be drafted in language that is clear enough for an average person to comprehend. Usually, a statute is called void for vagueness when an average citizen is not able to generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. A law can be held void for vagueness when:
· A law does not specifically enumerate the practices that are either required or prohibited; and
· A law does not specifically detail the procedure followed by officers or judges of the law.
· The doctrine of void for vagueness is based on four underlying policies, they are:
· The doctrine encourages the government to clearly distinguish conduct that is lawful from that which is unlawful;
· The doctrine curbs the arbitrary and discriminatory enforcement of criminal statutes;
· The doctrine discourages judges from attempting to apply sloppily worded laws; and
· The doctrine avoids encroachment on first amendment freedoms, such as freedom of speech and religion.
2. Vagueness Doctrine
uslegal.com http://definitions.uslegal.com/v/vagueness-doctrine/
Vagueness doctrine is a legal principle which states that a law is unconstitutionally vague if it does not give a “’person of ordinary intelligence a reasonable opportunity to know what is prohibited.” A statute which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. A statute should state explicitly and definitely what acts are prohibited, so as to provide fair warning and preclude arbitrary enforcement.The following is an example of a case law on the doctrine:In the context of a vagueness analysis, the court may impute to persons of common intelligence certain extrinsic knowledge, such as any limiting statutory construction adopted by a court or enforcement agency, general and specialized knowledge regarding the definition of words, and knowledge of legislative history. Consequently, a challenged statute must be clear to persons of common intelligence when viewed in light of this extrinsic knowledge. [Accounting Outsourcing, LLC v. Verizon Wireless Pers. Communs., L.P., 329 F. Supp. 2d 789 (M.D. La. 2004)]
3. Fairness Doctrine (Criminal Law Specifically)
The Heritage Foundation and the National Association of Criminal Lawyers, 2010, “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” The Heritage Foundation and the National Association of Criminal Lawyers, www.nacdl.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID [Ethos]
One fundamental principle is embodied in the doctrine of fair notice. The fair notice doctrine requires that, in order for a person to be punished criminally, the offense with which she is charged must provide adequate notice that the conduct in which she engaged was prohibited. The Supreme Court has recognized that fair notice is a component of the Constitution’s due process protections. For example, in the course of reversing the convictions of civil rights protestors because the law under which they were convicted was “void for vagueness” (a species of the fair notice doctrine), the Supreme Court stated: “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” It is thus a fundamental principle of due process that “a criminal law must give fair warning of the conduct it makes a crime.” Related to fair notice is the principle that the government must prove both “an evil-meaning mind” and “an evil-doing hand” before criminal punishment may justly be imposed.
Void for Vagueness Doctrine Inherency
1. Void for Vaugness should apply to more than criminal law
Cato Institute, December 2009, Amicus curia brief submitted for Skillling v. United States, http://www.cato.org/pubs/legalbriefs/skilling-v-united-states.pdf[Ethos]
As serious as this danger is in the realm of vague criminal law, it is equally real with regard to civil law—and the danger may be even greater when the vague law being enforced is a common law legal theory rather than a statute. This Court has repeatedly invoked the principles of due process to hold that individual criminal defendants are entitled to fair warning of what the law forbids and what the likely punishment will be. Those principles should apply with equal force when the defendant is a sophisticated business entity, or when the laws at issue are classified as civil rather than criminal, or when the case involves a common law tort rather than a statute.c
Examples of Vague Law
1. Examples of the Devastation of Vague Laws
Timothy Sandefur - March/30/2010 [ Timothy Sandefur is a principal attorney at the Pacific Legal Foundation.]“Get Rid Of Vague Laws” Cato Institute and Forbes - http://www.forbes.com/2010/03/30/vague-laws-economy-government-opinions-contributors-timothy-sandefur.html
Other vague laws have also been used to harass and intimidate businesses. The “wiretapping statute,” for example, prohibits the interception of transmitted messages. But in one case, the owner of an Internet service provider was prosecuted under this law after he made backup copies of e-mails stored on the company’s server—regardless of the fact that stored files aren’t being “transmitted” in any way. It was nearly a decade before he was brought to trial and finally acquitted.Combine vagueness with the ever expanding number of statutes and regulations affecting businesses and entrepreneurs on a daily basis and the result is a government bureaucracy with almost unlimited power to intimidate and blackmail citizens with the threat of prosecution—or to punish practically any conduct they choose to declare “illegal.” Two centuries ago James Madison warned that it would be “of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” But every year Congress and federal regulators create new restrictions, often written in impenetrable jargon or broad mandates that cannot be understood until after charges are filed.
2. Examples - Chicago v. Morales - Vagueness argued to protect state law
Justice Antonin Scalia [December 9, 1998] (US supreme court associate justice ) Chicago v. Morales. Scalia Dissenting opinion http://supreme.justia.com/cases/federal/us/527/41/case.html
Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated in public places to deal in drugs, and to terrorize the neighborhoods by demonstrating control over their “turf.” Many residents of the inner city felt that they were prisoners in their own homes. Once again, Chicagoans decided that to eliminate the problem it was worth restricting some of the freedom that they once enjoyed. The means they took was similar to the second, and more mild, example given above rather than the first: Loitering was not made unlawful, but when a group of people occupied a public place without an apparent purpose and in the company of a known gang member, police officers were authorized to order them to disperse, and the failure to obey such an order was made unlawful. See Chicago Municipal Code § 8–4–015 (1992). The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets. The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right, and by discerning vagueness where, according to our usual standards, none exists.