Notice and the new deal

Duke Law Journal

Volumn 62, Issue 6, 2013, Pages 1169-1226

  Sohoni, Mila ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84875898524     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (216)

1. W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 406 (1937).
2. See Mistretta v. United States, 488 U.S. 361, 373 (1989) ("Until 1935, this Court never struck down a challenged statute on delegation grounds. After invalidating in 1935 two statutes as excessive delegations, we have upheld, again without deviation, Congress' ability to delegate power under broad standards." (citations omitted)).
3. See United States v. Darby, 312 U.S. 100, 114 (1941) ("The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.'" (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824))); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37 (1937) ("The fundamental principle is that the power to regulate commerce is the power to enact 'all appropriate legislation' for its 'protection and advancement'. .. ." (quoting The Daniel Ball, 77 U.S. (10 Wall.) 557, 564 (1870))).
4. See Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247, 253 (1996) (calling the New Deal a "substantial reformation of the original constitutional structure above all because it refashioned the three basic cornerstones of that structure: federalism, checks and balances, and individual rights").
5. See, e.g., DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 64 (1991) ("After Roosevelt's court-packing threat, the Supreme Court retreated from its former role as the guardian of economic liberty. Economic regulations were given a very strong presumption of validity. .. .").
6. G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 3 (2000) (describing the "standard areas" of New Deal constitutionalism).
7. Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 421-22, 425 (1987) (discussing "three aspects of New Deal constitutionalism: the rejection of the original constitutional commitment to checks and balances in favor of independent and insulated regulatory administration, the recognition of substantive entitlements beyond those protected at common law, and the abandonment of principles of federalism that vested regulatory authority in both the federal government and the state").
8. Barry Cushman, The Great Depression and the New Deal, in 3 CAMBRIDGE HISTORY OF LAW IN AMERICA 268, 309 (Michael Grossberg & Christopher Tomlins eds., 2008).
9. See Vartelas v. Holder, 132 S. Ct. 1479, 1483-84 (2012); Skilling v. United States, 130 S. Ct. 2896, 2925 (2010).
10. FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012) ("A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.. .. This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment." (citations omitted)).
11. See LON FULLER, THE MORALITY OF LAW 39 (1964) (explaining that a secret law does "not simply result in a bad system of law; it results in something that is not properly called a legal system at all")
12. Jeremy Bentham, who not coincidentally invented the word "codification," supplied a famous exposition of this concept: "[W]e have never heard of any tyrant in such sort cruel, as to punish men for disobedience to laws or orders which he had kept them from the knowledge of."
13. 5 JEREMY BENTHAM, Justice and Codification Petitions, in THE WORKS OF JEREMY BENTHAM 437, 547 (John Bowring ed., 1962).
14. See also Screws v. United States, 325 U.S. 91, 96 (1945) (referring to "the practice of Caligula who 'published the law, but it was written in a very small hand, and posted up in a corner, so that no one could make a copy of it'".
15. Quoting SUETONIUS, LIVES OF THE TWELVE CAESARS 278 (121)
16. Kenneth C. Davis, The Information Act: A Preliminary Analysis, 34 U. CHI. L. REV. 761, 779, 797 (1967) (calling secret law "an abomination" and "forbidden").
17. Cf. Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 CALIF. L. REV. 491, 502-03 (1994).
18. See, e.g., Andrew E. Goldsmith, The Void-For-Vagueness Doctrine in the Supreme Court, Revisited, 30 AM. J. CRIM. L. 279 (2003).
19. Cristina D. Lockwood, Defining Indefiniteness: Suggested Revisions to the Void for Vagueness Doctrine, 8 CARDOZO PUB. L. POL'Y & ETHICS J. 255, 268 (2010).
20. The chief exception is the seminal fifty-year-old student note by Professor Anthony Amsterdam. See Anthony G. Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67 (1960).
21. See infra Part II.A.1.
22. See infra Part II.A.2.
23. See infra Part II.A.3.
24. See infra Part II.B.
25. See infra Part II.C.
26. United States v. Lanier, 520 U.S. 259, 266 (1997) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).
27. United States v. Williams, 553 U.S. 285, 304 (2008).
28. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
29. Vill. of Hoffman Estates, 455 U.S. at 498-99.
30. United States v. Lanier, 520 U.S. 259, 266 (1997) (identifying "three related manifestations of the fair warning requirement": vagueness doctrine, the rule of lenity, and the prohibition against retroactive application of statutes, including the rule that prohibits "applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope").
31. [3] NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 59:3, at 125 (6th ed. 2001).
32. McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.) ("[A] fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed."). The fit between the rule and the value of notice may only be a partial one.
33. Note, The New Rule of Lenity, 119 HARV. L. REV. 2420, 2425 (2006) (arguing that "fair notice is at most a partial justification for the rule of lenity").
34. See Douglas W. Kmiec & John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 HASTINGS CONST. L.Q. 525, 527-28 (1987) ("Prospectivity is an essential requirement of the rule of law because only prospective laws allow citizens to plan their conduct so as to conform to the law.").
35. Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994).
36. U.S. CONST. art. I, § 9, cl. 3; see also United States v. Tynen, 78 U.S. 88, 95 (1871) ("There can be no legal conviction, nor any valid judgment pronounced upon conviction, unless the law creating the offence be at the time in existence.").
37. United States v. Lanier, 520 U.S. 259, 266 (1997); see also Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964) ("If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. The fundamental principle that 'the required criminal law must have existed when the conduct in issue occurred' must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures." (citations omitted).
38. Quoting JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 58-59 (2d ed. 1960).
39. See Landgraf, 511 U.S. at 267 ("[T]he potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.").
40. See INS v. St. Cyr, 533 U.S. 289, 321 (2001) (noting that the judgment as to whether a statute acts retroactively "should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations" (quoting Martin v. Hadix, 527 U.S. 343, 358 (1999)) (internal quotation marks omitted)).
41. Landgraf, 511 U.S. at 282-83.
42. National Industrial Recovery Act, ch. 90, 48 Stat. 195 (1933) (terminated by Exec. Order No. 7252 (Dec. 21, 1935), reprinted in 15 U.S.C. §§ 703-712 (2006)).
43. See GARY DEAN BEST, PRIDE, PREJUDICE, AND POLITICS: ROOSEVELT VERSUS RECOVERY, 1933-1938, at 79 (1991) noting that "between 4,000 and 5,000 business practices were prohibited," roughly 3,000 administrative orders spanning over 10,000 pages were promulgated, and "innumerable opinions and directions from national, regional, and code boards" interpreted and enforced the NIRA's directives
44. Quoting Raymond Clapper, Between You and Me: Business Men To Protest NRA Arbitrary Legal System When Congress Meets, WASH. POST, Dec. 4, 1934, at 2 (internal quotation mark omitted).
45. Erwin N. Griswold, Government in Ignorance of the Law-A Plea for Better Publication of Executive Legislation, 48 HARV. L. REV. 198, 199 (1934) ("In the first year of the National Recovery Administration, 2998 administrative orders were issued. In addition to these, the Recovery Administration has adopted numerous regulations and sets of regulations which are to be found scattered among 5991 press releases during this period. It has been estimated that the total amount of 'law' evolved during the first year of the NRA's activities exceeds 10,000 pages, probably a greater volume than the total amount of statute law contained in the United States Code.").
46. Nicholas S. Zeppos, The Legal Profession and the Development of Administrative Law, 72 CHI.-KENT L. REV. 1119, 1126-28 (1997).
47. Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).
48. See also PETER H. IRONS, THE NEW DEAL LAWYERS 70-71 (1982).
49. Panama Ref., 293 U.S. at 412.
50. Connally v. Gen. Constr. Co., 269 U.S. 385 (1926).
51. Note, Indefinite Criteria of Definiteness in Statutes, 45 HARV. L. REV. 160, 160-61 (1931).
52. Cass Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 320 (2000) (noting that the nondelegation doctrine is "closely connected to the void for vagueness doctrine, requiring that certain laws be clear rather than open-ended").
53. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
54. Adkins v. Children's Hosp., 261 U.S. 525 (1923), overruled by W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (1937).
55. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
56. Fair Labor Standards Act of 1938, ch. 676, 52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201-219 (2006 & Supp. IV 2011)).
57. United States v. Darby, 312 U.S. 100 (1941).
58. See, e.g., United States v. Rock Royal Coop., 307 U.S. 533, 574 (1939) ("In dealing with legislation involving questions of economic adjustment, each enactment must be considered to determine whether it states the purpose which the Congress seeks to accomplish and the standards by which that purpose is to be worked out with sufficient exactness to enable those affected to understand these limits. Within these tests the Congress needs specify only so far as is reasonably practicable.").
59. Champlin Ref. Co. v. Corp. Comm'n, 286 U.S. 210, 242-43 (1932) (holding facially invalid a provision for the receivership of oil property in the case of an oil operator's violation of an act prohibiting waste on the ground that "it appears upon a mere inspection that these general words and phrases are so vague and indefinite that any penalty prescribed for their violation constitutes a denial of due process of law"); Smith v. Cahoon, 283 U.S. 553, 565 (1931) ("[A]ppellant has been held liable to the penalties of the Act for his disobedience to it as it stood when it was enacted. He was entitled at that time to assert his constitutional right by virtue of the invalidity of the statute upon its face."); Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927) (holding facially invalid a Colorado antitrust law because of its vagueness); Connally v. Gen. Constr. Co., 269 U.S. 385, 395 (1926) (holding facially invalid an Oklahoma statute regulating wages and hours because of its vagueness); A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 238-42 (1925) (holding facially invalid a statute prohibiting the exaction of unreasonable prices for necessaries because of its vagueness); United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921) (holding facially invalid section 4 of the Lever Act, ch. 53, 40 Stat. 276 (1917) (amended), because of its vagueness); see also Int'l Harvester Co. v. Kentucky, 234 U.S. 216, 223-24 (1914) (reversing convictions under vague Kentucky antitrust legislation using a rationale amounting to facial invalidation).
60. Lanzetta v. New Jersey, 306 U.S. 451 (1939).
61. Alfred Hill, Vagueness and Police Discretion: The Supreme Court in a Bog, 51 RUTGERS L. REV. 1289, 1295 (1999).
62. United States v. Five Gambling Devices, 346 U.S. 441, 458 (1953) (Clark, J., dissenting).
63. Thornhill v. Alabama, 310 U.S. 88 (1940).
64. Robinson v. United States, 324 U.S. 282 (1945).
65. United States v. Petrillo, 332 U.S. 1 (1947).
66. Williams v. United States, 341 U.S. 97 (1951).
67. United States v. Harriss, 347 U.S. 612 (1954).
68. Federal Regulation of Lobbying Act, ch. 753, tit. III, 60 Stat. 839 (1946) (repealed 1995).
69. Harriss, 347 U.S. at 627.
70. United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29 (1963).
71. Professor Richard Fallon has shown that the Court does not obey consistently its professed rule that as-applied challenges have priority over facial challenges
72. See Richard H. Fallon, Fact and Fiction About As-Applied and Facial Challenges, 99 CALIF. L. REV. 915, 946 (2011) ("Although the Supreme Court sometimes says the contrary, it by no means always, or even typically, prefers as-applied to facial challenges. ... To the contrary, the Court frequently eschews opportunities to decide cases on narrow, as-applied bases even when such bases are available.").
73. In the subcategory of cases addressing facial vagueness challenges, however, the Court has hewed to its announced approach except in rare circumstances involving certain preferred constitutional rights. See infra notes 100-101 and accompanying text.
74. Parker v. Levy, 417 U.S. 733 (1974).
75. United States v. Mazurie, 419 U.S. 544 (1975).
76. Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 304 (1994) ("The substantive law of vagueness does not require an exception to the Salerno presumption; indeed, it contains its own version. It is well established that a litigant whose conduct is clearly proscribed by a statute cannot complain that the statute would be ambiguous as applied to a third party.").
77. See Champlin Ref. Co. v. Corp. Comm'n, 286 U.S. 210, 242-43 (1932) ("The general expressions employed here are not known to the common law or shown to have any meaning in the oil industry sufficiently definite to enable those familiar with the operation of oil wells to apply them with any reasonable degree of certainty."); Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) ("[I]t will be enough for present purposes to say generally that the decisions of the court, upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, or a well-settled common-law meaning. .. ." (citations omitted)); Hygrade Provision Co. v. Sherman, 266 U.S. 497, 502 (1925) ("Furthermore, the evidence, while conflicting, warrants the conclusion that the term 'kosher' has a meaning well enough defined to enable one engaged in the trade to correctly apply it, at least as a general thing.").
78. Cf. Connally, 269 U.S. at 391 (noting that vagueness cases often turn on judicial determinations of what "men of common intelligence" would comprehend).
79. See, e.g., United States v. Darby, 312 U.S. 100 (1941); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); cf. United States v. Carolene Prods., 304 U.S. 144, 152-53 n.4 (1938) (contrasting the level of scrutiny that is applicable in categories of cases involving preferred liberties with the level of scrutiny that is appropriate to "regulatory legislation affecting ordinary commercial transactions").
80. See, e.g., Thornhill v. Alabama, 310 U.S. 88, 103-04 (1940) (acknowledging that "the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist," but further noting that the state may not curtail "the effective exercise of the right to discuss freely industrial relations which are matters of public concern").
81. See, e.g., Smith v. Goguen, 415 U.S. 566, 573 n.10 (1974) ("Compare the less stringent requirements of the modern vagueness cases dealing with purely economic regulation."); Papachristou v. City of Jacksonville, 405 U.S. 156, 162-63 (1972) ("In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed.. .. The poor among us, the minorities, the average householder are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them." (citations omitted)); United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 36 (1963) ("[In cases arising under the First Amendment] we are concerned with the vagueness of the statute 'on its face' because such vagueness may in itself deter constitutionally protected and socially desirable conduct. No such factor is present. .. where the statute is directed only at conduct designed to destroy competition. .. ." (citations omitted)).
82. A.B. Small v. Am. Sugar Ref. Co., 267 U.S. 233 (1925).
83. Lever Act, ch. 53, 40 Stat. 276 (1917) (repealed by Act of Mar. 3, 1921, ch. 136, 41 Stat. 1359).
84. Small, 267 U.S. at 238.
85. United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921).
86. Small, 267 U.S. at 238.
87. Cline v. Frink Dairy Co., 274 U.S. 445, 463 (1927). Other vagueness challenges to civil statutes during the same era were not successful, but the Court never rested its rejection of these challenges upon the civil nature of the legislation under attack. See, e.g., Old Dearborn Distrib. Co. v. Seagram-Distillers Corp., 299 U.S. 183, 196 (1936) ("[T]he phrases complained of are sufficiently definite, considering the whole statute. .. ."); Balt. & Ohio R.R. Co. v. Groeger, 266 U.S. 521, 523-24 (1925) ("[The language in question] is as definite and certain as is the common law rule; and to hold that the duty imposed cannot be ascertained would be as unreasonable as it would be to declare that the common law rule. .. is too indefinite to be enforced or complied with."); Miller v. Strahl, 239 U.S. 426, 434 (1915) ("Rules of conduct must necessarily be expressed in general terms and depend for their application upon the circumstances, and circumstances vary.").
88. Winters v. New York, 333 U.S. 507, 515 (1948).
89. Jordan v. De George, 341 U.S. 223 (1951).
90. See Boutilier v. INS, 387 U.S. 118, 123 (1967) ("It is true that this Court has held the 'void for vagueness' doctrine applicable to civil as well as criminal actions. However, this is where 'the exaction of obedience to a rule or standard. .. was so vague and indefinite as really to be no rule or standard at all. .. .'" (last alteration in original) (citation omitted) (quoting A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 239 (1925))); Barenblatt v. United States, 360 U.S. 109, 137 (1959) (Black, J., dissenting) ("It goes without saying that a law to be valid must be clear enough to make its commands understandable. For obvious reasons, the standard of certainty required in criminal statutes is more exacting than in noncriminal statutes.").
91. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982) ("The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.").
92. See Jeffrey I. Tilden, Note, Big Mama Rag: An Inquiry into Vagueness, 67 VA. L. REV. 1543, 1543 (1981) ("[Big Mama Rag, Inc. v. United States, 631 F.2d 1030 (D.C. Cir. 1980),] marks the first time since 1925 [Small] that a federal court has declared [a federal civil statute] to be void for vagueness.").
93. See, e.g., Arnett v. Kennedy, 416 U.S. 134, 159 (1974) ("[T]he standard of 'cause' set forth in the Lloyd-La Follette Act[, 5 U.S.C. § 7501 (1970),] as a limitation on the Government's authority to discharge federal employees is constitutionally sufficient against the charges both of overbreadth and of vagueness."); U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 568 (1973) (sustaining over vagueness and overbreadth challenges the Hatch Act's prohibition against federal employees taking an active part in political management or in political campaigns).
94. Hynes v. Mayor of Oradell, 425 U.S. 610, 611, 622-23 (1976) (invalidating a local ordinance "regulat[ing] most forms of door-to-door canvassing and solicitation"); Keyishian v. Bd. of Regents, 385 U.S. 589, 593-94, 604 (1967) (invalidating New York statutory provisions that made treasonable or seditious words or acts a ground for removal from the public school system or state employment); Baggett v. Bullitt, 377 U.S. 360, 361, 379-80 (1964) (invalidating Washington statutes requiring loyalty oaths as a condition of employment for teachers and state employees); NAACP v. Button, 371 U.S. 415, 425-26, 428-29 (1963) (invalidating a Virginia statutory provision that restricted the practice of advising prospective litigants to seek particular attorneys); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 497, 504-06 (1952) (invalidating a New York statutory provision concerning licensing of motion pictures).
95. See, e.g., Smith v. Goguen, 415 U.S. 566, 568 (1974) (invalidating a state statute prohibiting "flag-misuse"); Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972) (invalidating a city vagrancy ordinance); Coates v. City of Cincinnati, 402 U.S. 611, 615-16 (1971) (invalidating a city loitering ordinance); Giaccio v. Pennsylvania, 382 U.S. 399, 403 (1966) (invalidating a statute that allowed a jury to "impose costs upon a defendant who has been found by the jury to be not guilty of a crime charged against him"); Lanzetta v. New Jersey, 306 U.S. 451, 458 (1939) (invalidating a state antigang statute).
96. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982).
97. United States v. Murdock, 290 U.S. 389 (1933).
98. Sharon L. Davies, The Jurisprudence of Willfulness: An Evolving Theory of Excusable Ignorance, 48 DUKE L.J. 341, 366 (1998) (quoting United States v. Bishop, 412 U.S. 346, 361 (1973)) (internal quotation marks omitted).
99. The Murdock line survived the New Deal intact and continues to be applied in modern cases. See Bryan v. United States, 524 U.S. 184, 191-92 (1998); Cheek, 498 U.S. at 200. This rule has also been applied to antistructuring. See Ratzlaf v. United States, 510 U.S. 135, 136-37 (1994).
100. See, e.g., United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921) (striking down a Lever Act provision as vague without discussing the willfulness term). Mens rea was also noted, though in dicta, in Hygrade Provision Co. v. Sherman, 266 U.S. 497, 502-03 (1925), and Omaechevarria v. Idaho, 246 U.S. 343, 348 (1918). In both of these cases, the Court found the challenged laws specific enough to be comprehensible to the individuals regulated even apart from the fact that only knowing violations were punished. Hygrade Provision Co., 266 U.S. at 502; Omaechevarria, 246 U.S. at 348.
101. See United States v. Ragen, 314 U.S. 513, 524 (1942) (rejecting a vagueness challenge to a tax evasion statute in part because of a willfulness provision and stating that "[a] mind intent upon willful evasion is inconsistent with surprised innocence"); Gorin v. United States, 312 U.S. 19, 27-28 (1941) (rejecting a vagueness challenge in part because of the statute's scienter element, which required "intent or reason to believe that the information to be obtained is to be used to the injury of the United States"); Am. Tel. & Tel. Co. v. United States, 299 U.S. 232, 247 (1936) (rejecting a vagueness challenge to a Federal Communications Commission order because the act only punished knowing and willful padding of charges).
102. Screws v. United States, 325 U.S. 91, 101-02 (1945) (plurality opinion).
103. See John Leubsdorf, The Structure of Judicial Opinions, 86 MINN. L. REV. 447, 473-74 (2001).
104. [18] U.S.C. §§ 241-242 (2006).
105. Screws, 325 U.S. at 92 (plurality opinion).
106. Am. Commc'ns Ass'n v. Douds, 339 U.S. 382 (1950).
107. Labor Management Relations Act of 1947, ch. 120, 61 Stat. 136 (codified as amended in scattered sections of 29 U.S.C. (2006)).
108. Douds, 339 U.S. at 385-86.
109. See, e.g., United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 35 (1963) (observing that the Robinson-Patman Act prohibited making sales "at unreasonably low prices for the purpose of destroying competition" and stating that this "additional element of predatory intent alleged in the indictment and required by the Act provides further definition of the prohibited conduct" (emphasis added)); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342 (1952) ("The statute punishes only those who knowingly violate the Regulation. This requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid."); United States v. Petrillo, 332 U.S. 1, 7 (1947) ("It would strain the requirement for certainty in criminal law standards too near the breaking point to say that it was impossible judicially to determine whether a person knew when he was willfully attempting to compel another to hire unneeded employees."); cf. Colautti v. Franklin, 439 U.S. 379, 395 (1979) (invalidating a state abortion-control statute as vague in part because of "the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable").
110. See Elmer E. Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 MINN. L. REV. 775, 775-76 (1936).
111. James L. Kainen, The Historical Framework for Reviving Constitutional Protection for Property and Contract Rights, 79 CORNELL L. REV. 87, 103 (1993).
112. See, e.g., Brewster v. Gage, 280 U.S. 327, 337 (1930) ("Ordinarily, statutes establish rules for the future, and they will not be applied retrospectively unless that purpose plainly appears."); United States v. Magnolia Petroleum Co., 276 U.S. 160, 162-63 (1928) ("Statutes are not to be given retroactive effect or construed to change the status of claims fixed in accordance with earlier provisions unless the legislative purpose so to do plainly appears."). But it appears that the presumption against retroactivity was not uniformly applied.
113. See Ann Woolhandler, Public Rights, Private Rights, and Statutory Retroactivity, 94 GEO. L.J. 1015, 1018 (2006) (citing two exceptions).
114. See, e.g., Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 601-02 (1935) (holding invalid a Kentucky statute that applied retroactively to preexisting mortgages).
115. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934).
116. Veix v. 6th Ward Bldg. & Loan Ass'n, 310 U.S. 32 (1940).
117. E.N.Y. Sav. Bank v. Hahn, 326 U.S. 230 (1945).
118. Fleming v. Rhodes, 331 U.S. 100, 107 (1947) (quoting Sproles v. Binford, 286 U.S. 374, 391 (1932)).
119. See also DANIEL E. TROY, RETROACTIVE LEGISLATION 64 (1998).
120. See Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach, 110 HARV. L. REV. 1055, 1063-64 (1997) (explaining how, after the New Deal, the "erosion of the doctrine of substantive due process curtailed any judicial inclination to subject retroactive legislation to intensive scrutiny").
121. See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976) ("It does not follow, however, that what Congress can legislate prospectively it can legislate retrospectively. The retrospective aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former.").
122. See United States v. Carlton, 512 U.S. 26, 30 (1994) ("The 'harsh and oppressive' formulation, however, 'does not differ from the prohibition against arbitrary and irrational legislation' that applies generally to enactments in the sphere of economic policy." (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984))); Pension Benefit, 467 U.S. at 730 ("To be sure, we went on to recognize that retroactive legislation does have to meet a burden not faced by legislation that has only future effects.. .. But that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.").
123. Veix v. 6th Ward Bldg. & Loan Ass'n, 310 U.S. 32, 38 (1940) ("It was while statutory requirements were in effect that petitioner purchased his shares. When he purchased into an enterprise already regulated in the particular to which he now objects, he purchased subject to further legislation upon the same topic."). Veix provides the clearest statement of this idea, though earlier cases contain perceptible hints at it. See, e.g., Norman v. Balt. & Ohio R.R. Co., 294 U.S. 240, 307-08 (1935) ("[W]hen contracts deal with a subject matter which lies within the control of the Congress, they have a congenital infirmity. Parties cannot remove their transactions from the reach of dominant constitutional power by making contracts about them.").
124. See, e.g., Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 413 (1983) ("The threshold determination is whether the [Kansas Natural Gas Price Protection Act, 1979 Kan. Sess. Laws 841 (codified at KAN. STAT. ANN. §§ 55-1401 to 55-1415 (Supp. 1982)),] has impaired substantially [the petitioner's] contractual rights. Significant here is the fact that the parties are operating in a heavily regulated industry."); Fed. Hous. Admin. v. Darlington, Inc., 358 U.S. 84, 91 (1958) ("Congress by the [Housing Act of 1954 (1954 Act), ch. 649, 68 Stat. 610 (codified as amended in scattered sections of the U.S.C.),] was doing no more than protecting the regulatory system which it had designed. Those who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end."); Chrysler Corp. v. Kolosso Auto Sales, Inc., 148 F.3d 892, 895 (7th Cir. 1998) ("The centrality of foreseeability explains the courts' emphasis, in deciding whether the application of a new regulation violates the contracts clause, on the degree to which the activity to which the contract pertains was already heavily regulated when the contract was made.").
125. Charles B. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 HARV. L. REV. 692, 700 (1960).
126. Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955) (describing standards for rational-basis review of economic regulation).
127. Guido Calabresi, Retroactivity: Paramount Powers and Contractual Changes, 71 YALE L.J. 1191, 1194 (1962).
128. Landgraf v. USI Film Prods., 511 U.S. 244 (1994).
129. See Andrew C. Weiler, Note, Has Due Process Struck Out? The Judicial Rubberstamping of Retroactive Economic Laws, 42 DUKE L.J. 1069, 1071-72 (1993) ("Significantly, since the origination of the tax deference doctrine in 1938, the Supreme Court not only has never sustained a due process challenge to the retroactive application of a tax law, but, more remarkably, has not sustained a due process challenge to any retroactive economic law." (footnotes omitted)).
130. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT. REV. 345, 358 ("Although [United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820),] was the first Supreme Court decision to apply strict construction [of penal statutes], the rule did have a well established history in English law.").
131. Zachary Price, The Rule of Lenity as a Rule of Structure, 72 FORDHAM L. REV. 885, 885 (2004).
132. Narrowing prosecutorial discretion is another rationale sometimes advanced for the rule of lenity. See, e.g., United States v. Kozminski, 487 U.S. 931, 952 (1988).
133. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 600 (1992).
134. See Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 HARV. L. REV. 748, 762-63 (1935) ("[T]here is no sound reason for a general doctrine of strict construction of penal statutes, and prima facie all such should have as liberal a construction as statutes generally. .. .").
135. See JOHN BARKER WAITE, THE CRIMINAL LAW IN ACTION 320 (1934)
136. See also Francis A. Allen, The Erosion of Legality in American Criminal Justice: Some Latter-Day Adventures of the Nulla Poena Principle, 29 ARIZ. L. REV. 385, 400 nn.59, 62 (1987).
137. Lawrence M. Solan, Law, Language, and Lenity, 40 WM. & MARY L. REV. 57, 102-08 (1998).
138. Compare, e.g., United States v. Harris, 177 U.S. 305, 309 (1900) (relying on the rule of lenity to reject an argument that a "company" included persons acting on that company's behalf (internal quotation marks omitted)), with, e.g., Dotterweich, 320 U.S. at 283 (rejecting application of the rule of lenity and holding that a statute that imposed liability on a "corporation" imposed liability on that corporation's responsible officers).
139. SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344 (1943).
140. Harlan F. Stone, The Common Law in the United States, 50 HARV. L. REV. 4, 18 (1936).
141. NORMAN J. SINGER & J.D. SHAMBIE SINGER, 3 SUTHERLAND ON STATUTORY CONSTRUCTION § 61:3 (6th ed. 2007).
142. United States v. Gaskin, 320 U.S. 527, 529-30 (1944) ("The appellee invokes the rule that criminal laws are to be strictly construed and defendants are not to be convicted under statutes too vague to apprise the citizen of the nature of the offense. That principle, however, does not require distortion or nullification of the evident meaning and purpose of the legislation.").
143. United States v. Brown, 333 U.S. 18, 25-26 (1948) ("The canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose. It does not require magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language.").
144. See also Marie Gryphon, The Better Part of Lenity, 7 J.L. ECON. & POL'Y 717, 720-21 (2011) ("The current majority view [among courts] might appropriately be called the 'lenity last' view.. .. 'Lenity last' is a seldom used, last ditch tiebreaker, invoked only when every other clue to the legislature's intent has been examined without success.").
145. The current Court has tended to require a "grievous ambiguity" in the statute before the rule of lenity may apply. See, e.g., Dean v. United States, 129 S. Ct. 1849, 1856 (2009) ("To invoke the rule [of lenity], we must conclude that there is a grievous ambiguity or uncertainty in the statute." (quoting Muscarello v. United States, 524 U.S. 125, 138-39 (1998)) (internal quotation marks omitted)); United States v. Hayes, 129 S. Ct. 1079, 1089 (2009) (holding that the rule of lenity did not apply because the statute at issue was not "grievously ambiguous" (alterations omitted) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)) (internal quotation marks omitted)).
146. Lochner v. New York, 198 U.S. 45 (1905).
147. Hammer v. Dagenhart, 247 U.S. 251 (1918).
148. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937).
149. W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (1937).
150. Cf. T.S. ELIOT, The Hollow Men, in POEMS: 1909-1925, at 123, 128 (Harcourt, Brace & Co. 1932) (1925) ("This is the way the world ends/Not with a bang but a whimper.").
151. See THEODORE J. LOWI, THE END OF LIBERALISM: IDEOLOGY, POLICY, AND THE CRISIS OF PUBLIC AUTHORITY 132-33 (1st ed. 1969) (explaining the need for broad delegations as administrative components were added to the government).
152. This Article does not take a position in the spirited academic exchange on whether these doctrinal changes occurred purely because of the Court-packing threat or for other reasons. The point is only that these constitutional issues were questions presented in straightforward fashion by the New Deal's political agenda. A wealth of scholarship addresses the empirical accuracy of the so-called "switch-in-time" narrative.
153. See, e.g., Barry Cushman, Rethinking the New Deal Court, 80 VA. L. REV. 201 (1994).
154. Daniel E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. LEGAL ANALYSIS 69, 71 (2010).
155. These debates "center on the question whether the Supreme Court shifted ground in response to the direct threat to its independence embodied in the Court-packing proposal, or whether there is another less political explanation for the Court's doctrinal change," a question that many of the debaters themselves concede "is probably unanswerable."
156. Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. PA. L. REV. 971, 976 (2000).
157. For a persuasive argument that the Court-packing plan had no durable consequences upon the Court's performance as a majoritarian institution, see Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 SUP. CT. REV. 103, 132.
158. See United States v. Lanier, 520 U.S. 259, 265 (1997) (noting Justice Holmes's description of the constitutional necessity of "fair warning. .. in language that the common world will understand, of what the law intends to do if a certain line is passed" (alteration in original) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)) (internal quotation mark omitted)).
159. See ARTHUR M. SCHLESINGER, THE AGE OF ROOSEVELT, THE POLITICS OF UPHEAVAL 490 (1960) ("If the New Deal legislation were all nullified, the President said somberly, there would be marching farmers and marching miners and marching workingmen throughout the land.").
160. Communications Act of 1934, ch. 651, 48 Stat. 1064 (codified as amended in scattered sections of 47 U.S.C.).
161. United States v. Petrillo, 332 U.S. 1, 3 (1947) (quoting 47 U.S.C. § 506 (repealed 1980)) (quotation marks omitted).
162. Winters v. New York, 333 U.S. 507 (1948).
163. United States v. Dotterweich, 320 U.S. 277 (1943).
164. See Norman Abrams, Criminal Liability of Corporate Officers for Strict Liability Offenses-A Comment on Dotterweich and Park, 28 UCLA L. REV. 463, 463 (1981).
165. Dotterweich is frequently credited as the font of the "responsible corporate officer" doctrine, a theory of criminal liability that has caused much scholarly debate, in particular because modern federal and state environmental statutes have incorporated this theory in their provisions for criminal liability
166. See Todd S. Aagaard, A Fresh Look at the Responsible Relation Doctrine, 96 J. CRIM. L. & CRIMINOLOGY 1245, 1264 (2006).
167. Federal Food, Drug, and Cosmetic Act, ch. 653, 52 Stat. 1040 (1938) (codified at 21 U.S.C. § 301-392 (1940)).
168. Dotterweich, 320 U.S. at 280.
169. SEC v. Chenery Corp., 332 U.S. 194 (1947) (Chenery II); SEC v. Chenery Corp., 318 U.S. 80 (1943) (Chenery I). I am indebted to Ron Levin for this insight.
170. See Chenery I, 318 U.S. at 81-82.
171. Chenery II, 332 U.S. at 209.
172. See David Bernstein, Lochner's Legacy's Legacy, 82 TEX. L. REV. 1, 22-26 (2003) (criticizing Sunstein's conclusions).
173. See Cass Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (arguing that in the Lochner era "[m]arket ordering under the common law was understood to be a part of nature rather than a legal construct").
174. The seminal cases on rational-basis review and equal protection handed down in the same period held that legislative solutions to economic problems were constitutionally valid, even if they were partial and imperfect. See, e.g., Ry. Exp. Agency v. New York, 336 U.S. 106, 110 (1949) ("The local authorities may well have concluded that those who advertise their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use.. .. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.").
175. U.S. CONST. art. I, § 7.
176. John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 708 (1997).
177. See Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 562-63 (1992) ("Rules are more costly to promulgate than standards because rules involve advance determinations of the law's content, whereas standards are more costly for legal advisors to predict or enforcement authorities to apply because they require later determinations of the law's content.").
178. Cf. Sykes v. United States, 131 S. Ct. 2267, 2288 (2011) (Scalia, J., dissenting) ("We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-outby-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt.").
179. For some prominent and contrasting assessments, see, for example, 2 BRUCE ACKERMAN, WE THE PEOPLE 279 (1998)
180. Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453, 459 (1989).
181. Richard Epstein, The Mistakes of 1937, 11 GEO. MASON U. L. REV. 5, 5 (1988).
182. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1231 (1994).
183. Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1299 (1995).
184. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified in scattered sections of the U.S.C.) (amended).
185. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (stating that the minimumcoverage provision of the Patient Protection and Affordable Care Act violated the Commerce Clause but could be sustained as a tax, and invalidating the conditional expansion of Medicare as impermissibly coercive under the Spending Clause).
186. See United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion) (applying the rule of lenity to construe the term "proceeds" in the federal money-laundering statute to cover "profits," not "gross receipts").
187. The Supreme Court, 2007 Term-Leading Cases, 122 HARV. L. REV. 276, 475-76 (2008).
188. "Many modern judges and scholars either write off lenity as a dormant doctrine or theorize that its scope has gradually condensed to preventing only the criminalization of innocent conduct. Last Term, in United States v. Santos, [128 S. Ct. 2020 (2008),] the Supreme Court began reversing that trend.. .. By turning to lenity as its first point of analysis and strictly construing a statutory term whose broader construction could only have added additional penalties to a preexisting conviction, the Court began reversing the contraction of lenity and revitalizing a crucial protection for defendants.".
189. Skilling v. United States, 130 S. Ct. 2896 (2010).
190. Samuel W. Buell, The Court's Fraud Dud, 6 DUKE J. CONST. L. & PUB. POL'Y 31, 34 (2011).
191. See, e.g., United States v. Sorich, 523 F.3d 702 (7th Cir. 2008), cert. denied, 129 S. Ct. 1308 (2009).
192. Skilling v. United States, 130 S. Ct. 393 (2009).
193. Skilling, 130 S. Ct. at 2907 ("Construing the honest services statute to extend beyond that core meaning, we conclude, would encounter a vagueness shoal. We therefore hold that § 1346 covers only bribery and kickback schemes.").
194. Skilling, 130 S. Ct. at 2935 (Scalia, J., dissenting).
195. The vagueness debate between the majority and the dissent in Skilling is a pure rehash of the debates that occurred during the New Deal period on how best to accommodate vagueness doctrine with deference to the legislature's choices. The Skilling majority channeled the attitude of Justice Frankfurter's dissent in Winters v. New York, 333 U.S. 507, 520 (1948) (Frankfurter, J., dissenting), by asserting that its narrow construction of the statute preserved the legislative prerogative: "[T]he Court does not legislate, but instead respects the legislature, by preserving a statute through a limiting interpretation." Skilling, 130 S. Ct. at 2931 n.43 (majority opinion). The Skilling dissent, echoing the Dotterweich dissent, United States v. Dotterweich, 320 U.S. 277, 285 (1943) (Murphy, J., dissenting), contended that true deference to legislative judgment would require holding the statute vague: "The Court strikes a pose of judicial humility. ... [But] it is wielding a power we long ago abjured: the power to define new federal crimes." Skilling, 130 S. Ct. at 2935 (Scalia, J., dissenting). Justice Scalia has long been a vocal advocate for placing some teeth back into the vagueness doctrine. See, e.g., Sykes v. United States, 131 S. Ct. 2267, 2288 (2011) (Scalia, J., dissenting) (chastising Congress for enacting an "ever-increasing volume" of "imprecise laws"); H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 255-56 (1989) (Scalia, J., concurring) (inviting a vagueness challenge to the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (1982 & Supp. V 1988)).
196. See Auer v. Robbins, 519 U.S. 452, 462 (1997) (holding that an agency's interpretation of an ambiguous regulation merits deference even when the interpretation is offered in a legal brief, so long as it reflects the "agency's fair and considered judgment on the matter in question").
197. See Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2167-68 (2012) ("[T]he pharmaceutical industry had little reason to suspect that its longstanding practice of treating detailers as exempt outside salesmen transgressed the FLSA. The statute and regulations certainly do not provide clear notice of this.. .. [W]here, as here, an agency's announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute.").
198. See generally Matthew C. Stephenson & Miri Pogoriler, Seminole Rock's Domain, 79 GEO. WASH. L. REV. 1449, 1461-62 (2011) (noting the potential dangers of deference to agencies that promulgate their own rules and interpret them with few safeguards).
199. See Christopher, 132 S. Ct. at 2167 (holding that deference to the agency's interpretation "would seriously undermine the principle that agencies should provide regulated parties 'fair warning of the conduct [a regulation] prohibits or requires'") (alteration in original) (quoting Gates & Fox Co. v. OSHA, 790 F.2d 154, 156 (D.C. Cir. 1986))).
200. FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2318 (2012) (emphasis added) ("The Commission's lack of notice to Fox and ABC that its interpretation had changed. .. 'fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited.' This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon 'sensitive areas of basic First Amendment freedoms'. .. .") (second alteration in original) (citation omitted) (quoting United States v. Williams, 128 S. Ct. 1830, 1845 (2008); and Baggett v. Bullitt, 377 U.S. 360, 372 (1964))).
201. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605 (2010).
202. See, e.g., William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 MICH. L. REV. 1509, 1512 n.9, 1542-47 (1998) (describing the "manipulable" nature of linguistic and text-based canons).
203. Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429, 433 (2002) ("Through equitable doctrines, interpretive canons, and other devices of statutory construction, the [Rehnquist] Court has conferred protections [upon state and local governments] that would be difficult if not impossible to derive directly from the Constitution.").
204. See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 198-200 (1985) (finding that the rule of lenity is only used now to provide outcomes that "seem right").
205. See, e.g., Vartelas v. Holder, 132 S. Ct. 1479, 1483 (2012) (deciding whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 & 18 U.S.C.), is applicable to a crime that occurred before the law became effective); INS v. St. Cyr, 533 U.S. 289, 292-93 (2001) (inquiring whether the IIRIRA was intended to apply retroactively to past crimes).
206. Cf. Pamela S. Karlan, Foreword: Democracy and Disdain, 126 HARV. L. REV. 1, 64 (2012) ("Across a broad range of cases, the Court expressed a suspicion of the political process-a suspicion that goes beyond skepticism toward the traditional Carolene Products categories. ... And while the distrust was expressed more often by the more conservative members of the Court, it was not limited to them.").
207. See Mila Sohoni, The Idea of "Too Much Law," 80 FORDHAM L. REV. 1585, 1587 (2012) (describing variants of "the claim that America suffers from 'hyperlexis,' or the existence of 'too much law,'" and its influence on governmental actors).
208. APA at 65: Is Reform Needed To Create Jobs, Promote Economic Growth, and Reduce Costs?: Hearing Before the Subcomm. on Courts, Commercial, & Admin. Law of the H. Comm. on the Judiciary, 112th Cong. 12 fig.2 (2011) (statement of Susan Dudley, Director, George Washington University Regulatory Studies Center) (describing the increase in the number of pages in the Federal Register from 1940 to 2010).
209. Robert C. Ellickson, Taming Leviathan: Will the Centralizing Tide of the Twentieth Century Continue into the Twenty-First?, 74 S. CAL. L. REV. 101, 105 (2000) ("In 1928, the unannotated version of the United States Code appeared in two tall volumes that totaled six inches in width. The 1988 version of the unannotated Code included twenty-nine volumes that spanned six feet, a twelve-fold increase." (footnote omitted)).
210. See Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 409 (1989) (describing the continuing post-New Deal growth of the regulatory state during the "rights revolution" of the 1960s and 1970s, when the "national government substantially increased its regulatory responsibilities").
211. See, e.g., Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1628, 1635 (2010) (Kennedy, J., dissenting) (criticizing the notion that "an attorney faced with legal uncertainty only needs to turn to the Federal Trade Commission (FTC) for an advisory opinion" as "misconceiv[ing] the practical realities of litigation" and concluding that this may partly account for "why, in the past decade, the FTC has issued only four opinions in response to just seven requests").
212. See V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 HARV. L. REV. 1477, 1534 (1996) ("[S]ome justification for corporate criminal liability may have existed in the past, when civil enforcement techniques were not well developed, but from a deterrence perspective, very little now supports the continued imposition of criminal rather than civil liability on corporations. Indeed, the answer to the question the title poses-'corporate criminal liability: what purpose does it serve?'-is 'almost none.'").
213. See, e.g., United States v. Moore, 612 F.3d 698, 702 (D.C. Cir. 2010) (Kavanaugh, J., concurring) ("This case is novel: The Government has obtained a false statements conviction under 18 U.S.C. § 1001 against an individual who signed the wrong name on a postal delivery form.").
214. See JEAN STROUSE, MORGAN: AMERICAN FINANCIER, at ix (2000) ("When Pierpont Morgan died in 1913. .. he was the most powerful banker in the world.").
215. See Karl N. Llewellyn, Some Realism About Realism, 44 HARV. L. REV. 1222, 1237 (1931) (describing legal realism as involving "distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions").
216. See Robert C. Post, Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 8 (2003) ("[C]onstitutional law and culture are locked in a dialectical relationship, so that constitutional law both arises from and in turn regulates culture").