Benjamin Chen on "Textualism as Fair Notice?" (Washington Law Review)

"Textualism as Fair Notice?"

Benjamin Chen
Washington Law Review, Volume 339, Issue 97
Published on June 1, 2022

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...