The New Deal’s Fourth Change: Federalism, Delegation, Economic Liberty, AND Notice

March 20th, 2013

A cool article from Mila Sohoni in the Duke Law Journal that looks at how the New Deal not only jettisoned traditional notions of federalism, delegation, and economic liberty, but also skewed traditional notes of notice (including vagueness, retroactivity, and the rule of lenity).

Here is the abstract:

The New Deal Supreme Court revised a well-known set of constitutional doctrines. Legal scholarship has principally focused on the changes that occurred in three areas — federalism, delegation, and economic liberty. This Article identifies a new and important fourth element of New Deal constitutionalism: a change in the constitutional doctrine of due process notice, the doctrine that specifies the minimum standards for constitutionally adequate notice of the law. The law of due process notice — which includes the doctrines of vagueness, retroactivity, and the rule of lenity — evolved dramatically over the course of the New Deal to permit lesser clarity and to tolerate more retroactivity. The upshot has been the near-total elimination of successful notice-based challenges other than in the limited context of First Amendment vagueness attacks.

Unlike the more famous doctrinal changes of this period, changes to due process notice doctrine were not obviously necessary to accommodate the New Deal legislative agenda, either as a matter of jurisprudence or as a matter of politics. Due process notice doctrine nonetheless underwent a radical transformation in this era, as the Court came to regard its broader shift toward deferring to legislative and executive policy decisions as requiring the relaxation of due process notice doctrine. The link forged between deference and notice had significant functional effects on the most important audience for the Court’s notice jurisprudence — Congress. By loosening the strictures of due process notice doctrine, the Court lowered sharply the enactment costs of federal legislation and thereby facilitated its proliferation. This is a distinct, and hitherto unacknowledged, mechanism by which the Court in this period enhanced national power and encouraged the flourishing of the emerging administrative state.

Like much of the New Deal “settlement,” the New Deal reformulation of due process notice doctrine is today the subject of ferment in the courts. Recognizing the New Deal roots of due process notice doctrine is critical for understanding these ongoing judicial debates — and for beginning the conceptual work of mapping the future shape of this vital cluster of doctrines.


Three important aspects of the modern law of vagueness were settled during the New Deal period. First, the Court tightened its standards for sustaining facial vagueness challenges to laws outside the First Amendment context.16 Second, it started to treat civil economic laws as categorically subject to relaxed scrutiny for vagueness.17 Third, with respect to criminal laws, the Court adopted the practice of treating mens rea requirements as a substitute for clarity in legislative language.18

Viewed separately or in combination, these principles worked a considerable change in the substance and procedure of vagueness challenges. But the notice jurisprudence of this period did more than merely transform vagueness. The Court changed its treatment of the rules pertaining to retroactivity, another doctrine that serves values of

fair warning and notice.19 Shifts of comparable heft occurred in the Court’s application of the rule of lenity, a canon of statutory construction that likewise implicates notice.20 In sum, while it famously used one aspect of vagueness doctrine to build a “buffer zone” of protection around the exercise of certain individual liberties,21 the Court in this era also—less famously but no less critically—used the bulk of due process notice doctrine to create a “buffer zone” that would shield the exercise of government power from challenge by regulated individuals.

And why was this change necessary? So the Court could continue to uphold the federal administrative state:

Why, then, did due process notice doctrine change in this period? The timing of these doctrinal changes was not a coincidence. The Court’s opinions reveal that the Justices debated how due process notice doctrine should be altered and ultimately came to embrace the view that a relaxed due process notice was a necessary component of the Court’s larger project of establishing judicial deference to the political branches on matters of economic and social policy.

The forging of this link between notice and deference had notable consequences. By relaxing the constraints of due process notice doctrine, the Court sharply lowered the costs of enacting federal legislation and thus facilitated its proliferation. By thus boosting Congress’s lawmaking capacity, the Court’s reformulation of due process notice doctrine helped to pour the foundation upon which its coequal branches would build the modern regulatory state. 

It’s amazing how quickly the New Deal Court was able to dump so many bedrock principles of our constitutional order.

My colleague Dru Stevenson has a cool new paper, titled Costs of Codification that looks at a similar aspect of legislative proliferation:

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs for courts and citizens, as statutes proliferate. This Article takes a first look at this problem. On the legislative side, codification makes it easier for special interest groups to obtain their desired legislation. It facilitates Coasean bargaining between legislators, and encourages legislative borrowing, which diminishes the “laboratories of democracy” phenomenon. For the courts, codification changes how judges interpret statutes, prompting them to focus more on the meaning of individual words than on the overall policy goals of enactment, and to rely more on external sources, such as legislative history. For both legislators and courts, codification functions as a Hartian rule of recognition, signaling legality for enacted rules. For the citizenry, the reduced legislative costs mean increased legislative output, yielding rapid proliferation of statutes and unmanageable legal information costs. More disturbingly, codification also fosters overcriminalization. While it may not be appropriate to revert to the pre-codified regime now, reexamining the unintended effects of codification can inform present and future choices for our legal system.

Making it easier to enact laws is not always a good thing.