The Law of Clarity and the Clarity of Law
Professor Richard Re's Clarity Doctrines sheds light on a neglected and growing legal phenomenon, legal rules that turn on clarity. He is correct to note that these clarity doctrines can serve important aims in law. He is likewise correct to note that clarity doctrines necessarily calibrate conflicting values, as when they promote the finality of state court judgments over the risk of mistaken state court decisions. So there can be no doubt that such doctrines deserve more attention when Congress decides to employ them.
But, as this Response suggests, Congress ought to refrain from imposing clarity doctrines by statute, and courts ought to retreat from creating such doctrines wholesale. Those doctrines create more problems than they solve, including those of malleability and pluralism that Re identifies. And they can be replaced by a simpler, uniform, and predictable doctrine.
Specifically, courts should reject the importance of ambiguity altogether. Instead, they should decide cases for the side with the stronger argument, whether that strength of argument is by a hair's breadth or a mile. And in cases of true equipoise, courts should borrow a familiar concept, burdens of proof, to break the tie, thus allowing judges to escape the difficulties raised by clarity doctrines. In short, clarity doctrines do more harm than good, and a better solution is at hand for courts than creating or extending clarity doctrines.