Rules and judicial review

Legal Theory

Volumn 6, Issue 3, 2000, Pages 299-321

  Sherwin, Emily ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 84994175219     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200063047     Document Type: Article

References (82)

1. See generally Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359 (1998).
2. See generally Mark Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41 (1995); John Copeland Nagle, Severability, 72 N.C. L. REV. 203 (1993); Robert Stern, Separability and Separability Clauses in the Supreme Court, 51 HARV. L. REV. 76, 82-106 (1937).
3. See generally Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997).
4. Several commentators have equated the practices mentioned in the text to judicial revision of statutes. See Dorf, Ashwander Revisited note 1, at 292-93 (severance results in a “judicially rewritten law”); Nagle, Ashwander Revisited note 2, at 220 (the product of severance is “akin to a new statute”); Schauer, Ashwander Revisited note 3, at 80-81 (narrowing construction is a form of “redrafting”).
5. For a comprehensive discussion and defense of the essential connection between constitutional rights and rules, to which I am much indebted, see Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998).
6. United States v. Salerno, 481 U.S. 739, 745 (1987). Some have read the statement quoted in the text to mean that a statute cannot be challenged on its face if it has some constitutional applications. See Dorf, For a comprehensive discussion and defense of the essential connection between constitutional rights and rules, to which I am much indebted note 1, at 250. Marc Isserles interprets it to mean that a statute is facially invalid if the terms of the statute, “measured against the relevant constitutional doctrine, and independent of the constitutionality of particular applications,” state a constitutionally invalid rule. Isserles, For a comprehensive discussion and defense of the essential connection between constitutional rights and rules, to which I am much indebted note 1, at 387.
7. An example of a statute with no valid applications is one that contains a discriminatory predicate. For example, a statute that prohibits assaults by blacks is invalid in all applications, although assaults can be prohibited, including assaults by blacks. See Lawrence A. Alexander, Is there an Overbreadth Doctrine?, 22 SAN DIEGO L. REV. 541, 545 (1985) (giving examples of statutes that are necessarily invalid in all applications because their predicates are underinclusive). See also R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1992) (hate speech ordinance facially invalid because it targeted the content of speech); Isserles, United States v. Salerno note 1, at 386-95 (discussing facial challenges based on a constitutional violation inherent in the terms of the statute). On First Amendment overbreadth and vagueness doctrines, see generally Thornhill v. Alabama, 310 U.S. 88 (1940); Lawrence H. Tribe, AMERICAN CONSTITUTIONAL LAW 1022-24, 1033-35 (2d ed. 1988); Alexander, United States v. Salerno; Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 854 (1991); Alfred Hill, The Puzzling First Amendment Overbreadth Doctrine, 25 HOFSTRA L. REV. 1063, 1083 (1997); Henry Paul Monaghan, Overbreadth, 1981 SUP. CT. REV. 1. First Amendment Overbreadth is briefly discussed at notes 37-39, infra.
8. See, e.g., Yazoo & Mississippi Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912) (railroad that refused to settle a nonfrivolous damage claim could not challenge a railroad liability statute that might be unconstitutional when applied to frivolous claims).
9. See, e.g., INS v. Chadha, 462 U.S. 919, 931-35, 959 (1983); Alaska Airlines v. Brock, 480 U.S. 678, 684-97 (1987). John Nagle lists five ways in which a question of severability can arise: A litigant may claim that a statute is invalid in its entirety because unconstitutional provisions are not severable from the rest of the statute; a litigant may claim that one provision is unenforceable because it is not severable from other invalid provisions; a litigant may claim that one application of a statute is unacceptable because it is not severable from other invalid applications; a litigant may argue that provisions of a statute are not severable, and therefore another litigant cannot enforce any part of the statute; or a litigant may challenge a statute as underinclusive or overinclusive. Nagle, Yazoo & Mississippi Valley R.R. v. Jackson Vinegar Co. note 2, at 208-09.
10. See, e.g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 81-84 (1976).
11. Michael Dorf has argued that the normal practice of judging the constitutionality of statutes as-applied is in effect a practice of severance. Dorf, Planned Parenthood of Central Missouri v. Danforth note 1, at 249-50. See also Stern, Planned Parenthood of Central Missouri v. Danforth note 2, at 82-87 (discussing separable applications of statutes); Dorf equates severability and as-applied adjudication. With severability in mind, First Amendment overbreadth doctrine can be conceived as an exception to the normal practice of severing constitutional from unconstitutional applications of statutes, in response to special concerns about the deterrent effect of the statute on protected expression. See Dorf, Planned Parenthood of Central Missouri v. Danforth note 1, at 261-62 (equating a deterrent-based account of First Amendment overbreath with “a presumption of nonseverability where rights of expression are concerned”).
12. E.g., Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234 (1932), overruled in other respects, Philips Petroleum Co. v. Oklahoma, 340 U.S. 190 (1950) (“Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”) New York v. U.S., 505 U.S. 144, 186 (1992) (quoting Champlin, Michael Dorf has argued that the normal practice of judging the constitutionality of statutes as-applied is in effect a practice of severance.); Alaska Airlines v. Brock, 480 U.S. 678, 684 (1987) (quoting Champlin, Michael Dorf has argued that the normal practice of judging the constitutionality of statutes as-applied is in effect a practice of severance.); Dorf, Michael Dorf has argued that the normal practice of judging the constitutionality of statutes as-applied is in effect a practice of severance. note 1, at 285 (stating that forty-eight of fifty states follow this test); Nagle, Michael Dorf has argued that the normal practice of judging the constitutionality of statutes as-applied is in effect a practice of severance. note 2, at 210-211 (discussing the test).
13. See Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (“[T]he presumption is in favor of severability.”); Nagle, Champlin Refining Co. v. Corporation Comm'n of Oklahoma note 2, at 218-20 (tracing the history of presumptions for and against severability); cf. Alaska Airlines, 480 U.S. at 686 (stating that “In the absence of a severability clause,… Congress’ silence is just that-silence,” but also quoting the standard test, which calls for severance unless it is “evident” that legislature would not have enacted the valid portion of the statute alone).
14. See, e.g., Alaska Airlines, 480 U.S. at 686 (severability clause creates a presumption in favor of severability). On severability clauses, see generally, Movsesian, Regan v. Time note 2, at 73-77; Nagle, Regan v. Time note 2, at 234-46; Stern, Regan v. Time note 2, at 120-28.
15. See, e.g., De Bartolo Corp. v. Florida Gulf Coast Building & Construction Trades Counsel, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”); Ashwander v. Tennessee, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citing Crowell v. Benson, 285 U.S. 22, 62 n.8 (1932) (“'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’”).
16. Frederick Schauer has made this argument persuasively. Schauer, De Bartolo Corp. v. Florida Gulf Coast Building & Construction Trades Counsel note 3, at 83-84. It can be argued that legislatures intend statutes to be given a meaning that conforms to constitutional requirements. Cf. Alexander, De Bartolo Corp. v. Florida Gulf Coast Building & Construction Trades Counsel note 7, at 542-43 (arguing that constitutional requirements can be read into statutes either as external limits or “[b]y indulging the fiction that the legislature always intends to incorporate the Constitution into each of its laws). Schauer points out, however, that our political system does not impose sanctions on legislators who overreach constitutional boundaries; hence there is no reason to assume, as a matter of intent, that statutes incorporate constitutional limits. Schauer, De Bartolo Corp. v. Florida Gulf Coast Building & Construction Trades Counsel at 92-93.
17. See Schauer, Frederick Schauer has made this argument persuasively. note 3, at 80-81; Stern, Frederick Schauer has made this argument persuasively. note 2, at 95.
18. For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes, see Schauer, Frederick Schauer has made this argument persuasively. note 3 note 3, at 91-98. Adrian Vermeule presents an interesting analysis of the relation between severability and the rule that courts should construe statutes to conformto constitutional requirements. According to Vermeule, an early version of this rule stated that, given two possible interpretations, one constitutional and one unconstitutional, the court should choose the constitutional interpretation. In the version now prevalent, however, the rule states that courts should interpret statutes to avoid constitutional questions. Thus, the early form of the rule required a constitutional decision (namely, that one reading of the statute was in fact unconstitutional), and therefore operated much like a severability decision following a finding of unconstitutionality. In comparison, the current form of saving construction deflects constitutional questions. Vermeule, Frederick Schauer has made this argument persuasively. note 3 note 3, at 1948-49. In Vermeule's view, this early form of saving construction, as well as the typical form of severance following a finding of unconstitutionality, are more legislation-friendly practices because a saving construction to avoid constitutional questions forecloses applications of the statute that might be valid. Id. at 1960.
19. See Adler, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5, at 125-32 (comparing facial invalidation of statutes to various forms of “optimal revision”); Dorf, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 1, at 292-93 (discussing severance); Nagle, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 2, at 220 (same).
20. See Schauer, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3, at 80-81 (narrowing interpretation is a form of “redrafting”); Stern, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 2, at 82 (“the result can be described as amending the law”).
21. See Adler, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3 note 5, at 5-7 (describing a “Direct Account” of constitutional rights, in which a reviewing court holds the treatment of a particular litigant to be unconstitutional, in contrast to a “Derivative Account,” in which the court invalidates or revises the rule under which the litigant was sanctioned); Dorf, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3 note 1, at 244-46 (describing but ultimately rejecting a “privileged-conduct-only” view of constitutional rights); Monaghan, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3 note 7, at 4-5 (describing an activity-oriented view of constitutional rights).
22. See Adler, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3 note 5 note 5, at 91-132 (defending the “Derivative Account” of constitutional rights); Alexander, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3 note 5 note 7, at 545 (suggesting that the Constitution limits the reasons for which government can act, rather than protecting particular acts); Dorf, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3 note 5 note 1, at 242-50 (arguing that constitutional rights are best conceived as rights to be judged by a valid rule); Monaghan, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3 note 5 note 7, at 4-8 (arguing that litigants have a right to be judged by a constitutionally valid rule).
23. See For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3 note 5 note 5 text following note 23.
24. I do not intend to take a position on the difficult problem of interpretation. See generally, LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY (Andrei Marmor ed., 1995); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321 (1990). It is enough for my purposes that courts search for evidence of intent in the text, and secondarily in such sources as structure, purpose, and legislative history. See, e.g., Huffman v.Western Nuclear, Inc., 486 U.S. 663, 672 (1988) (quoting United States v. American Trucking Ass'ns, 310 U.S. 534, 543 (1940)) (text); INS v. Cardozo-Fonseca, 480 U.S. 421, 449 (1987) (“plain language…, symmetry…, and legislative history”); Nagle, For strong criticism of the practice of avoiding constitutional questions by narrow construction of statutes note 5 note 3 note 5 note 5 text following note note 2, at 232.
25. See Movsesian, I do not intend to take a position on the difficult problem of interpretation. note 2, at 73-82, proposing a textual approach, together with a “default rule” in favor of severability; Nagle, I do not intend to take a position on the difficult problem of interpretation. note 2, at 232-34 (proposing that courts treat severability as a question of intent, relying primarily on text).
26. See Movsesian, I do not intend to take a position on the difficult problem of interpretation. note 2 note 2, at 74-75; Nagle, I do not intend to take a position on the difficult problem of interpretation. note 2 note 2, at 234-46 (allowing an exception for “absurd results”).
27. See note 27, I do not intend to take a position on the difficult problem of interpretation. note 2 note 2, text at notes 37-39, infra.
28. See, e.g., Stern, note 27 note 2, at 122-23 (commenting on indiscriminate use of separability clauses); but cf. Nagle, note 27 note 2, at 241 (tracing the history of a 1989 child-care bill, in which Senators anticipated particular challenges).
29. See, e.g., Nagle, note 27 note 2 note 2, at 246-50.
30. This test was proposed by Robert Stern in 1937. Stern, note 27 note 2 note 2 note 2, at 98.
31. See, e.g., Alaska Airlines v. Brock, 480 U.S. 678, 684, 685 (1987); Warren v. Mayor of Charlestown, 68 Mass. (2 Gray) 84 (1854).
32. See, e.g., Alaska Airlines, 480 U.S. at 686 (severability clause raises presumption of severability); Stern, Alaska Airlines v. Brock note 2, at 114-18, 121-25 (discussing severability clauses).
33. See materials cited (severability clause raises presumption of severability); note 12.
34. See Nagle, materials cited (severability clause raises presumption of severability); note note 2, at 230. Mark Movsesian has argued that an approach based on hypothetical intent equates interpretation of statutes, which address and bind a large number of parties, with interpretation of contracts, which are two-party bargains. Movsesian, materials cited (severability clause raises presumption of severability); note note 2, at 58-59, 66-73.
35. See Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and Constitutions, 37 CASE W. RES. L. REV. 179, 189-91 (1986) (conceiving interpretation as a process in which the judge acts as a subordinate faced with a failed communication, and asks what action will best carry out the “enterprise” in which the legislature is engaged).
36. See, e.g., Champlin Refining Co. v. CorporationComm'n ofOklahoma, 286 U.S. 210, 234 (1932) (invalid provisions can be severed “if what is left is fully operative as a law”); Nagle, Legal Formalism note 2, at 215-16 (describing this as an “objective” component of the inquiry). Of course, the incoherence of the remaining provisions can be characterized as a reason to believe the legislature would not intend a severance, see Alaska Airlines, 480 U.S. at 684 (“Congress could not have intended [severance] if the balance of the legislation is incapable of functioning independently”), but incoherence rather than intent is doing most of the work.
37. See, e.g., Thornhill v. Alabama, 310 U.S. 88 (1940) (facial review); Broaderick v. Oklahoma, 413 U.S. 601, 615 (1973) (substantial overbreadth). See generally Alexander, Champlin Refining Co. v. CorporationComm'n ofOklahoma note 7; Fallon, Champlin Refining Co. v. CorporationComm'n ofOklahoma note 7; Hill, Champlin Refining Co. v. CorporationComm'n ofOklahoma note 7; Monaghan, Champlin Refining Co. v. CorporationComm'n ofOklahoma note 7. At least, federal courts will not presume that state statutes are severable. See Dorf, Champlin Refining Co. v. CorporationComm'n ofOklahoma note 1, at 283-85.
38. See, e.g., Fallon, Thornhill v. Alabama note 7, at 867-70, 884-88 (“chilling effect”), 887 (incentives for legislatures).
39. On the distinction between constitutional and prophylactic versions of First Amendment overbreadth doctrine, see Fallon, id. at 867-75 (finding both constitutional and prophylactic bases for overbreadth). See also Alexander, Thornhill v. Alabama note 7 note 7, at 552-54 (proposing a balance between governmental interests in particular forms of law and protection of First Amendment rights); Dorf, Thornhill v. Alabama note 7 note 1, at 261-64 (characterizing overbreadth as one instance of a constitutional non-severability principle in cases of fundamental rights); Monaghan, Thornhill v. Alabama note 7 note 7, at 8-23 (suggesting that overbreadth is not a special First Amendment doctrine, but an application of the general constitutional right to be judged by valid laws, in a context that demands that laws regulate by the least restrictive means).
40. See, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987).
41. See, e.g., Alaska Airlines v. Brock, 480 U.S. 678, 686-87 (1987) (finding “no need to resort to a presumption”).
42. John Nagle makes this proposal. Nagle, Alaska Airlines v. Brock note 2, at 253-58.
43. See Dorf, John Nagle makes this proposal. note 1, at 292 (severability is supported by the principle “that courts will not disturb Congressional policies reflected in legislation except insofar as the constitution requires”); Movsesian, John Nagle makes this proposal. note 2, at 80 (“separation-of-powers concerns”); Nagle, John Nagle makes this proposal. note 2, at 251 (severability honors the principle that “a court should give effect to a statute to the maximum extent permitted by the Constitution”); Vermeule, John Nagle makes this proposal. note 3, at 1961 (severance is designed to “put into effect… as broad a range of applications as possible”).
44. See Dorf, John Nagle makes this proposal. note 1 note 1, at 292 (severability can promote “judicial restraint”); Nagle, John Nagle makes this proposal. note 1 note 2, at 250-51 (severance avoids constitutional questions). But see Vermeule, John Nagle makes this proposal. note 1 note 3, at 1950-52 (distinguishing between “ius tertii severance,” in which the court upholds the application of a statute to the case before it and avoids a decision on the constitutionality of other applications, and “severance proper,” in which the court finds the statute to be invalid as applied but also decides that other potential applications are valid; in the latter case, the court does not avoid constitutional decision making).
45. See Chicago v. Morales, 119 S. Ct. 1849, 1867-69 (1999) (Scalia, J., dissenting) (arguing against facial invalidation of statutes); Dorf, John Nagle makes this proposal. note 1 note 1 note 1, at 246 (discussing possible rationales for a view of constitutional rights as privileging particular actions, but ultimately rejecting such a view).
46. See Movsesian, Chicago v. Morales note 2, at 80-81 (“severability comports with present legislative practice); Nagle, Chicago v. Morales note 2, at 251-52 (referring to “empirical realities of the legislative process”).
47. I have referred at several places in the text to interpretation and to noninterpretive judicial rulemaking. Implicit in these references, and in my later discussion of the functions of rules, is a particular conception of interpretation that focuses on authors’ intent. Very briefly, I understand the meaning of a statute or other rule to be the meaning the rulemaking authority intended the words of the rule to have. The text of the rule is good, but not conclusive, evidence of intent. It follows from this conception of meaning that when a court departs from the authority's intent-whether on the basis of the literal meaning of words, underlying purposes the rule was designed to promote, or independent moral ideals to which the words can (or cannot) be fit-the court is engaged in a noninterpretive practice, and has in effect assumed the position of a rulemaking authority. This view is expressed in much more detail in Larry Alexander & Emily Sherwin, PAST IMPERFECT: RULES, PRINCIPLES, AND DILEMMAS OF LAW ch. 4 (forthcoming) (manuscript on file with author). On the many problems connected to interpretation, see generally Kent Greenawalt, STATUTORY INTERPRETATION: 20QUESTIONS (1999); Keith E.Whittington, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999); LAWAND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY (Andrei Marmor ed., 1995).
48. For a comprehensive analysis of the nature of and justifications for rules, see Frederick Schauer, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING (1991).
49. (defending the possibility of “semantic autonomy”); Frederick Schauer, Formalism, 97 YALE L.J. 509, 520-32 (1988) (defending the capacity of rules to constrain decision making).
50. On the distinction between rules and standards, see generally Cass R. Sunstein, LEGAL REASONING AND POLITICAL CONFLICT 21-34 (1996); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976); William Powers, Jr., Structural Aspects of the Impact of Law on Moral Duty Within Utlitarianism and Social Contract Theory, 26 UCLA L. REV. 1263 (1979); Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577 (1988).
51. See Alexander & Sherwin, On the distinction between rules and standards note 48, ch. 1.
52. See Schauer, On the distinction between rules and standards note 48 note 49, at 54 (rules are “instantiations” of background principles).
53. See Alexander & Sherwin, On the distinction between rules and standards note 48 note 49 note 48, ch. 1 at 6-9, ch. 5 at 5-6; Joseph Raz, THE MORALITY OF FREEDOM 70-80 (1986); Schauer, On the distinction between rules and standards note 48 note 49 note 49, at 149-55.
54. For sources recognizing the expertise function of rules, see, e.g., Tom Campbell, THE LEGAL THEORY OF ETHICAL POSITIVISM 51, 58 (1996); Schauer, On the distinction between rules and standards note 48 note 49 note 48 note 49, at 150-52, 158-59; Jules L. Coleman, Authority and Reason, in THE AUTONOMY OF LAW 287, 305 (R. George ed., 1996).
55. On the coordination function of rules, see, e.g., Raz, For sources recognizing the expertise function of rules note 54, at 49-50; Schauer, For sources recognizing the expertise function of rules note 49, at 163-66; Heidi M. Hurd, Justifiably Punishing the Justified, 90 MICH. L. REV. 2203, 2293-3201 (1992); Gerald Postema, Coordination and Convention at the Foundations of Law, 11 J. LEGAL STUD. 165, 172-86; Donald H. Regan, Authority and Value: Reflections on Raz's Morality of Freedom, 62 S. CAL. L. REV. 995, 1006-10 (1989). On the requirement that the rule must be generally followed in order to have a coordinating effect, see Alexander & Sherwin, For sources recognizing the expertise function of rules note 48, ch. 5 at 20-23.
56. Whether people accept the settlement is another matter. See generally Alexander & Sherwin, On the coordination function of rules note 48, ch. 5 (discussing the difficulty of enforcing authoritative rules); Heidi M. Hurd, Challenging Authority, 100 YALE L.J. 1611 (1991) (rejecting the “practical authority” of legal rules). Without acceptance by those who might otherwise disagree about ends, means, or particular applications, rules have no coordinating effect. Here I assume that, in general, the rules are accepted.
57. See, e.g., Schauer, Whether people accept the settlement is another matter. note 49, at 31-34, 47-52 (underinclusiveness and overinclusiveness).
58. See Alexander & Sherwin, Whether people accept the settlement is another matter. note 49 note 48, ch. 4 at 15-16 (equivocation rules); Regan, Whether people accept the settlement is another matter. note 49 note 56, at 1025-26 (explaining that such enactment of a rule provides actors with a reason to believe that others will do as the rule requires, which in turn provides a reason to act accordingly).
59. See Raz, Whether people accept the settlement is another matter. note 49 note 48 note 54, at 70-80 (discussing the “normal justification” of rules); Schauer, Whether people accept the settlement is another matter. note 49 note 48 note 49, at 149-55; Larry Alexander & Emily Sherwin, The Deceptive Nature of Legal Rules, 142 U. PA. L. REV. 1994-98; Coleman, Whether people accept the settlement is another matter. note 49 note 48 note 55, at 304-05.
60. See Larry Alexander, Pursuing the Good-Indirectly, 95 ETHICS 315 (1985).
61. Public choice theory, for example, raises serious doubts about orderly pursuit of public good through legislation. See generally, Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873 (1987); Symposium on the Theory of Public Choice, 74 U. VA. L. REV. 167 (1988).
62. See H.L.A. Hart, THE CONCEPT OF LAW 121-23 (1961) (discussing the use of standards).
63. See id. at 77-96 (discussing secondary rules in a mature legal system).
64. See Joseph Raz, THE AUTHORITY OF LAW 42-43 (1979) (efficaciousness). At a minimum, officials must accept the rules and subjects must accept the basic secondary rule that gives officials their authority. See Hart, (discussing secondary rules in a mature legal system). note 63, at 94 (on the “rule of recognition”).
65. The Supreme Court has made clear that rent control is not, in itself, an unconstitutional taking of private property. See Pennell v. San Jose, 485 U.S. 1 (1988) (finding a taking claim premature when tenant hardship was only one among seven factors to be considered in approving rent increases). In Yee v. Escondido, 503 U.S. 519 (1992), the Court upheld a set of regulations on mobile-home pad rentals that controlled rents and also limited landlords’ choice of tenants, limited the grounds for terminating leases, and prevented landlords from charging fees or removing mobile homes in case of sale. The Court suggested, however, that if the law had prohibited termination of leases and conversion of property to other leases, either explicitly or as applied, this might amount to a “physical” taking. Id. at 528. It also suggested that strict limits on landlords’ ability to choose among tenants could result in a regulatory taking, but then strained to conclude that the issue of regulatory taking was not properly before the Court. Id. at 530-31, 535-38.
66. U.S. 490 (1981), on remand to the Supreme Court of California 32 Cal. 3d 180 (1982).
67. Metromedia, Inc., 453 U.S. at 500-515. The California Supreme Court had held that the ordinance was valid on its face but invalid as applied to noncommercial billboards when there were no good alternatives open to particular speakers. Metromedia, Inc. v. San Diego, 26 Cal. 3d 848, 869 n.14 (1980). The United States Supreme Court held the ordinance invalid with respect to all noncommercial speech at least when the ordinance as written preferred commercial to noncommercial speech and attempted to regulate the content of noncommercial billboards by allowing some types of noncommercial displays and prohibiting others. Metromedia, Inc., 453 U.S. at 512-515.
68. Metromedia, Inc. v. San Diego, 32 Cal. 3d 180, 186-90 (1982).
69. See, e.g., Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 163, 163-65, 174-78 (Daniel Kahneman, Paul Slovic, & Amos Tversky eds., 1982).
70. On the nature and virtues of analogical reasoning in law, see, for example, Anthony Kronman, THE LOST LAWYER 170-85 (1993); Cass R. Sunstein, LEGAL REASONING & POLITICAL CONFLICT 62-100 (1996); Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument By Analogy, 109 HARV. L. REV. 923 (1996); Emily Sherwin, A Defense of Analogical Reasoning in Law, 66 U. CHI. L. REV. 1179, (1999). For strong criticism of analogical reasoning, see Larry Alexander, Bad Beginnings, 145 U. PA. L. REV. 57 (1996).
71. See Sherwin, On the nature and virtues of analogical reasoning in law note 73. On reflective equilibrium, see John Rawls, A THEORY OF JUSTICE 46-53 (1971); Brewer, On the nature and virtues of analogical reasoning in law note 73, at 938-39, 963, 1023.
72. Marsh v. Alabama, 326, U.S. 501. I amassuming that the threat this statute poses to other First Amendment rights is insubstantial, so that the question of severability has no constitutional dimension. On this point see Alexander, who argues for a balance between the deterrent effect the statute may have on expression and the legislative interest in regulating trespass by means of a broad prohibition. Alexander, On the nature and virtues of analogical reasoning in law note 73. note 7, at 552-54 (1981).
73. Criminal statutes deny due process of law when they are too vague and uncertain to provide fair notice of what is required. See, e.g., Larzetta v. New Jersey, 306 U.S. 451, 458 (1939) (“A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”).
74. Cf. Nagle, Criminal statutes deny due process of law when they are too vague and uncertain to provide fair notice of what is required. note 2, at 234-35 (advocating a “plain meaning” rule for severability clauses, consistent with judicial treatment of other statutory provisions).
75. See Stern, Criminal statutes deny due process of law when they are too vague and uncertain to provide fair notice of what is required. note 2 note 2, at 122-23 (suggesting that severability clauses are not wellthought-out by legislatures). For an instance in which Congress appears to have consciously considered the effects of severability, see Nagle, Criminal statutes deny due process of law when they are too vague and uncertain to provide fair notice of what is required. note 2 note 2, at 241.
76. Severability of legislative veto provisions is discussed in Nagle, Criminal statutes deny due process of law when they are too vague and uncertain to provide fair notice of what is required. note 2 note 2 note 2, at 204-05 & n.6 (collecting other sources); Laurence H. Tribe, The Legislative Veto Decision: A Law By Any Other Name?, 21 HARV. J. ON LEGIS. 1, 21-27 (1984).
77. INS v. Chadha, 462 U.S. 919, 944-59 (1983).
78. Alaska Airlines v. Brock, 480 U.S. 678, 684-85 (1987); Chadha, 462 U.S. at 931-35, 959 (relying on severability clause).
79. John Nagle reaches the contrary conclusion that the speculative nature of hypothetical Congressional intent supports a focus on actual intent with respect to severability, coupled with a plain statement rule in favor of severability. Nagle, Alaska Airlines v. Brock note 2, at 230, 232-58.
80. See, e.g., Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1975) (“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the law as applied to others.”); United States v. National Dairy Products Corp., 372 U.S. 29, 31 (1963) (upholding a provision of the Robinson-Patman Act that forbade the selling at “unreasonably low prices” as applied to a dairy that sold milk below cost) (“In determining the sufficiency of notice, a statute must of necessity be examined in light of the conduct with which the defendant is charged.”). When vague statutes affect the exercise of First Amendment rights, the court has reached the opposite result and allowed facial challenges. See, e.g., Coates v. Cincinnati, 402 U.S. 611 (1971) (conduct “annoying to persons passing by”).
81. See, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (as-applied adjudication); De Bartolo Corp. v. Florida Gulf Coast Building & Construction Trades Counsel, 485 U.S. 568, 575 (1988) (saving construction).
82. See Adler, United States v. Salerno note 5, at 153-58 (arguing that a “derivative account” of constitutional rights, in which courts address the constitutionality of rules, indicates that courts must engage in facial review of statutes).