In The Fair Notice Fiction, Professor Jesse Cross provides a much-needed deep dive into one of modern textualism’s core tenets—that giving statutes their ordinary meaning puts people on notice about their legal obligations and therefore promotes the rule of law value of fair notice to the public. The claim to promote fair notice is one that textualism long has asserted, but it has taken on a new importance in the last few years as textualist Justices have come to dominate the modern Court and to loudly proclaim their commitment to identifying a statute’s “original public meaning.”1
The Fair Notice Fiction seeks to debunk this core textualist justification. Professor Cross’ central critique is that the idea of providing fair notice to the public through statutory text has always been a fiction—for at least two reasons. First, in the modern era, the reading of statutory text is a “language game accessible only to legal elites.” (P. 1.) Second, throughout most of history, literacy has been low, texts have been scarce, and language barriers have abounded—even in those early democracies often touted as providing fair notice of statutory meaning to the public.
The first substantive section of Cross’s article explains in detail why meaningful fair notice cannot exist in the modern era. Specifically, Cross argues that two structural features of modern federal law—(1) its length; and (2) its “nontransparent interconnectivity”—make it impossible for ordinary citizens today to read and comprehend statutory text. With respect to length, Cross provides many useful and stark data points, such as the fact that as of 2018 the U.S. Code was 60,000 pages long and that each page of the Code contains three-times as many words as a typical book page. Regarding nontransparent interconnectivity—Cross uses this somewhat unwieldy phrase to describe an important and underappreciated reality: Federal statutory law is filled with numerous nonexplicit, nonobvious points of interconnection, whereby the meaning of a provision in one statute (e.g., a Medicare statute) depends on a provision in another statute (e.g., a penalty statute that applies broadly throughout the U.S. Code, or the Religious Freedom Restoration Act, which likewise applies across the U.S. Code) but the second statute is nowhere mentioned in the statute at issue. Indeed, The Fair Notice Fiction outlines eight common categories of such non-transparent interconnectivity in federal law. Both of these sections, on length and interconnectivity, are incredibly valuable to anyone interested in how statutes operate on the ground—as both provide detailed information that has so far gone undocumented in the statutory interpretation literature. Ultimately, Cross argues that the complexities in modern federal law make it impossible for anyone other than the legal elite to be able to read and comprehend federal statutes—because only the legal elite possess what Cross calls the “regime literacy” to find and read statutes, let alone interconnected provisions that might bear on the meaning of the statute at issue.
Professor Cross then goes on to examine what fair notice meant in ancient Rome, early England, and the United States. In this section, he provides detailed historical accounts of just how inaccessible statutory law always has been to the general public—even during historical periods now touted as exemplars of public notice. With respect to ancient Rome, for example, Cross debunks the popular myth of public notice via posted tablets by noting that (1) most citizens lived in rural areas, while public postings were made in urban centers; (2) most laws were posted for only 30 days, and it was difficult for even legal actors to access older statutory texts; (3) while thousands of laws were enacted, only a small percentage of these were displayed to the public; (4) widespread illiteracy rendered it impossible for most ordinary citizens to read even those laws that were posted; and (5) language barriers compounded these problems as statutes were posted only in Latin, although Greek was a major competing language and a dozen or more languages were spoken throughout the Roman empire.
Professor Cross concludes by recommending that scholars and jurists re-examine their commitment to text-based notice and focus instead on “active investments in informing the public about the content of laws”—through intermediaries who possess “regime literacy” and can help ordinary people understand what a statute means. (P. 78.) Cross does not go into great depth regarding who should serve as such intermediaries, but he does mention administrative agencies as well as the “Navigator” program that designated individuals and organizations to help ordinary citizens navigate the new insurance landscape created by the Affordable Care Act.
In the end, Professor Cross’s article provides valuable and insightful information about the nuances of both federal statutory law and the history of fair notice in early democracies. The article is a must-read for anyone who wishes to understand what fair notice has meant historically—and what it realistically can look like in the modern era.
- See, e.g., Bostock v. Clayton Cty., 140 S.Ct. 1731, 1749 (2020) (“We must determine the ordinary public meaning of Title VII’s command.”).
