The Law of Clarity and the Clarity of Law by Michael A. Francus

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.

Re on Clarity Doctrines

Professor Re begins with the observation that clarity doctrines abound. From Chevron to lenity, habeas to qualified immunity, doctrine routinely demands that judges assess “clarity,” “ambiguity,” or the “reasonable[ness] of disagreement.” All of these are clarity doctrines, for they require judges to assess not only the merits question (the correct interpretation of the law) but also how clear that correctness is. Yet, Re notes, these clarity doctrines themselves want for clarity. That is so because courts have no ready way to discern what makes disagreement reasonable, or how much unclarity renders a statute vague or ambiguous, and courts are even more lost when they attempt to quantify such unclarity.

Responding to the pervasiveness of clarity doctrines and courts’ struggles in assessing clarity, Re proposes that courts “direct findings of legal clarity when doing so advances legally recognized goals.” Those goals include certainty (“one’s own confidence in the correct answer”) and predictability (“the likelihood that other actors will reach a common answer”). In turn, courts should set “clarity thresholds” based on “each doctrine’s accepted purposes,” attending to the importance of certainty and predictability, among other goals.

Taking examples like Chevron and federal habeas, Re sets forth doctrinal goals like certainty and predictability for each, and then suggests how those goals can guide the way for clarity doctrines. This responds to the critics of clarity doctrines, like then-Judge Kavanaugh, who find principled approaches to clarity doctrines “futile” or “not possible in any rational way.” In short, Re argues that clarity doctrines need not rest on “conceptual sand,” but can instead be crafted to doctrinal purposes, the better to advance recognized goals of the law.

The Unclarity of Clarity Doctrines

Professor Re notes the challenges that pluralism, malleability, and awkwardness pose to his view. He contends that these challenges can be overcome, or are not as concerning as first blush would make them seem. But that confidence is misplaced, at least as far as pluralism and malleability go.

Pluralism is the concern that clarity doctrines will proliferate, resulting in a fragmented, confusing mess. Re, as an initial matter, observes that courts have been resisting that variety. But he also sees clarity pluralism as desirable, as “clarity doctrines pursue varied ends.” Hence, on his view, clarity doctrines should proliferate to the extent that different areas of law do not “share similar purposes.” That, though, necessarily yields the very proliferation fretted over and is hardly a response to one concerned with clarity pluralism.

It is also a rosier view than warranted. For one thing, clarity doctrines abound, so pluralism yields an explosion of new rules about rules, all of which threaten the simplicity, intelligibility, and predictability of law. Perhaps courts can maintain uniformity across qualified immunity and the good faith exception (as Re finds that courts do), but how does that fit with habeas, lenity, Chevron, and Kisor?

Within administrative law alone, the threat of clarity pluralism is daunting. Different agencies have different expertise, make different kinds of decisions implicating their expertise, and have different underlying purposes of their decision-making and of the role of clarity therein. The Supreme Court does not (formally) apply Chevron differently for each agency, but the motivating ideas of Clarity Doctrines would seem to require an agency-specific Chevron. So across dozens of agencies, judges and the public would need to discern the right amount of clarity with aught to guide them but the purposes of clarity for that particular agency and that particular statute, whatever those might be.

As it stands now, the Court requires Chevron Step 0 to determine if deference is due (as in the major questions doctrine), applies Skidmore deference, and relies on Kisor deference in yet other cases. All that turns on the nature of the statute or regulation and its clarity or lack thereof. But if Clarity Doctrines were taken to its logical conclusion, all these clarity doctrines would need to be bespoke for each agency. And not just tailored for the nature of the statute, but the purpose of the agency in carrying out that statute. That demands nigh infinite clarity doctrines. After all, the purpose of deference to the Food and Drug Administration on “active moiet[ies]” (expertise) differs from the purpose of deference to the Bureau of Immigration Affairs’s interpretation of “serious nonpolitical crime” (international affairs). In turn, the purpose of the clarity that determines such deference differs as well.

The result would be a tangle of clarity doctrines, as-yet unknown, to be created by courts based on views of the purpose of clarity in a specific deference situation. Beyond that, some agencies act both in areas implicating expertise and in areas implicating no, or less, expertise. The FDA regulates both active moieties and the size of food labels. Those too would seem to call for different deference regimes dependent on different standards of clarity, and thus multiply clarity doctrines even for the same agency.

Another consequence of such a regime is agency-based forum-shopping. Federal agencies often overlap in authority, as in the case of conduct that violates antitrust laws, which may be policed by both the Department of Justice (under the Sherman Act) and the Federal Trade Commission (under the Federal Trade Commission Act). So, for example, if courts set a low threshold for finding ambiguity (and hence more often grant deference) to the Federal Trade Commission for its Act, but not the Department of Justice for the Sherman Act, they could incentivize the executive branch to divert antitrust cases to the courts’ preferred enforcer. That might be warranted based on agencies’ track records, but it also lends itself to judges playing favorites among agencies. And in the extreme, such differences in clarity doctrines across agencies could create overwhelming incentives to prefer one agency, say the Commission, such that the courts essentially render the other’s authority a dead letter.

Malleability, or the concern that judges differ in implementing clarity doctrines, poses a similarly large challenge. Because Re proposes calibrating clarity doctrines based on the purposes in play, judges setting clarity doctrines must, necessarily, be second-order purposivists about clarity. That is, each judge must decide the purpose that clarity serves in a given statute to decide the clarity threshold to apply, and only then turn to the merits of the case.

But purposivism, like any legal method, is a bit slippery. And adding the extra layer of slipperiness (the second-order purposes of clarity) before applying that clarity threshold to the merits further threatens to cloud law.

Take some examples: Is the purpose of clarity in qualified immunity to create a narrow (dare we say, qualified) exception to constitutional rights? Or is it to protect (dare we say, immunize) officers? No doubt courts will vary in their understanding of the underlying purposes of the doctrine. So too will they vary in crafting rules that implement the doctrine.

Or consider habeas. When Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), it did so to “curb the abuse of the statutory writ of habeas corpus and to address the acute problems of unnecessary delay and abuse in capital cases.” While many debate the virtues of such curbing, it is one purpose of AEDPA. At the same time, federal habeas exists to correct state court errors. How should courts account for that clash when they tailor clarity doctrines for the word “unreasonable” in AEDPA? Effectuating AEDPA’s purpose through a clarity doctrine requires reconciling the two purposes, and neither purpose points to a doctrine for AEDPA clarity. Put simply, the consideration of purpose cannot readily determine how courts should think of clarity rules.

Nor can the consideration of purpose point courts to a rule that implements such a doctrine: even if a court considering qualified immunity’s clarity purposes can settle on the proper balance of protecting officers and protecting constitutional rights, nothing guides the court to any particular test for achieving that balance.

Nowhere does Re offer an example of how to reduce this balancing of clarity’s purposes to doctrine, or suggest a method for doing so. And his list of considerations as to the purposes of clarity is formidable: error-minimization, risk aversion, egalitarianism, and efficiency are just a few purposes that judges must weigh. Compounding all that, Re acknowledges that the weighing is “inescapably normative.” So it is hard to see how a method could be developed for turning clarity purposes into clarity doctrine in any given statute, let alone the wide swath of them.

The upshot of paying attention to all these purposes and clarity doctrines is thus a want of clarity. And that is only for one judge evaluating one case. The problems balloon as judges everywhere conduct this exercise for every agency in every regulatory scenario, every police officer, every habeas petitioner, and so on. And though the Supreme Court will be able to clear up some of these divergences on discrete issues or discrete statutory provisions, the proliferation of clarity doctrines will no doubt outstrip any Court clarifications given the copiousness of the United States Code and the Court’s limited docket.

Rethinking Clarity Doctrines

Some of the solution to the budding morass of clarity doctrines lies with Congress. Congress can calibrate clarity doctrines as it pleases, and in doing so should consider Professor Re’s criteria of predictability and certainty. It can also impose fewer clarity doctrines, and it should.

As for courts crafting clarity doctrines (like Chevron, Kisor, and qualified immunity), the solution is to replace clarity doctrines altogether. Instead, courts should rule in favor of the side with what they consider to be the better argument, and in cases on a knife’s edge employ a familiar legal tool: burdens of proof.

On this view, the result is the same whether courts view the merits as a 90–10 split or a 55–45 one. The result is also the same whether other judges agree or not. Each judge simply votes for the argument she finds more persuasive, regardless of the lopsidedness (or closeness) of the arguments—that is, regardless of how clearly correct she finds that most persuasive argument to be.

In this manner, most clarity problems can be resolved through a simple rule. That rule involves no second-order theorizing, works for any interpretive approach, and offers litigants what they expect from courts—you win if you have the better argument. To boot, this solves the awkwardness problem, as no judge would need to find another judge unreasonable, but merely wrong. And it addresses then-Judge Kavanuagh’s concern that clarity doctrines disserve the appearance of justice by having judicial ambiguity determinations appear to turn on politics.

That leaves only cases where the unclarity is so severe that the judge cannot determine which side has the better argument. By way of analogy, such a case is the rare instance of flipping a coin that lands neither heads nor tails, but on its edge. Here, though, the judge can resort to another simple, familiar tool: the burden of proof. Just as a party in litigation bears a burden of proof for factual matters, so too should courts recognize such a burden for legal matters and, in cases where the legal arguments are in equipoise, rule against the side that has the burden.

If a prosecutor proves her case to a reasonable doubt, but not beyond, she loses. If a civil plaintiff proves her case to exactly 50%, but neglects the feather, she loses under a preponderance standard. The same idea works for questions of law.

For instance, a defendant bears the burden of proving an affirmative defense. By definition, if the facts are in equipoise on that defense, he loses. The same can hold for the law being in equipoise. Once all the tools of legal analysis run out (be the judge textualist, intentionalist, purposivist, pragmatist, or what have you), if the case is that rare case of legal equipoise, where the judge simply cannot say whether the affirmative defense covers the defendant’s conduct, then the defendant loses.

To take another example, the enumeration in Article I suggests that Congress may only act within those powers and must prove that its legislation falls within those powers. Thus, in a case of such unclarity—say, whether the Commerce power extends to intrastate marijuana use—that the court cannot determine if an act falls within Article I, Congress loses. By contrast, in the territories, where Congress has plenary authority, a law should be presumed valid until a defendant points to a source of law that dictates otherwise.

In short, sources of law themselves suggest where the legal burden of proof lies just as they suggest where the factual burden of proof lies. Courts can leverage that feature in cases where doubt is so great that they cannot even say which side has the better argument.

The upshot of such a doctrine is far better than a proliferation of clarity doctrines. It requires judges to do no more than evaluate the merits of legal arguments and rule for the side with the better one. They need not divine second-order purposes of clarity in a given statute, or convert clarity purposes into clarity tests and then evaluate the merits, or determine that another judge or a police officer was “unreasonable.” And in the rare case of thoroughgoing unclarity, they need only resort to the source of law itself and apply a familiar concept, the burden of proof, to determine the victor. The result is thus a doctrine that is simple, predictable, and clear; one that advances the clarity of law by abandoning the law of clarity.


Michael A. Francus (Stanford Law School, J.D. 2017) is an associate in Kirkland & Ellis’s appellate practice. The author would like to thank Ethan Herenstein, Aaron Nielson, and Richard Re for their insightful thoughts, comments, and suggestions.

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