There is an obligation upon those drafting laws and regulations to do so with sufficient clarity so as to convey what precise conduct is proscribed or prohibited. Failing to discharge that task with clarity builds speed-traps that catch the unwary and burden our judicial system. Recently, Congress has churned out a flurry of laws for the financial services industry (and various governmental agencies will be charged with further rulemaking), and it is imperative that the new rules of the road are concise. A stop sign must look like one. The speed limits must be clearly posted. Sadly, as appellate courts have ruled in recent months, our lawmakers do not always say what they mean, and those charged with enforcing our laws do not always do so in the spirit of equal justice for all.
Defendants often complain that they had no idea that the acts they are accused of engaging in constituted proscribed or prohibited conduct. They point to the language of whatever law or regulation that they are charged with violating and argue that it doesn't say what their adversary suggests, or that it says what it says but it means something different. Similarly, prosecutors and regulators sometimes have a penchant for stretching the laws and regulations that they enforce to cover a whole host of sins. In some cases, one would think that the statute or regulation was made of rubber.
Of course the byproduct of lawmaking is rarely a pristine outcome. Too often our legislators burden a proposed law with so many amendments and special-interest provisions that a once clear-cut statute is rendered unintelligible. As a result, the press becomes filled with stories about laws being over-turned because they are "void for vagueness" or because they failed to give adequate notice. All of which regularly leads to one verdict at trial and a different one on appeal, and an up-and-down, twist-and-turn nature of criminal and regulatory enforcement that drives all of those who participate in the process crazy. Consider the recent cases of Skilling, Black and the Public Accounting Oversight Board.
When I try to explain the concept of void for vagueness, I typically have to resort to all sorts of examples -- many involving legal arcana and others which don't quite make the point. However, the other day I was presented with a wonderful illustration of this legal puzzle while visiting the Bronx Zoo in New York City.
Consider this sign that was posted at the zoo along an asphalt walkway and in front of a wooded area:
Okay, so, go ahead, tell me, according to the sign, what exactly is prohibited? As best I can tell, you can't do something with some kind of footwear that has a wavy soul. As you can tell from the background image, there isn't any grass around, so I'm not particularly sure what the green tufty stuff at the bottom of the image is, but let's assume that it's either natural or maybe artifical grass.
- There is no human leg in the sneaker, so perhaps you're not allowed to throw a shoe -- a la the protest launched at former President Bush in Baghdad? Perhaps if the Iraqi authorities had prominently posted this sign on the doors leading into the press room, that dissident reporter would not have been arrested and jailed?
- On the other hand, there seems to be some prominent issue about wavy treads on the bottom of the shoe and I don't see any shoelaces, so maybe the sign is warning us wearing loafers or slip-ons?
- Of course, since this is a sign at the zoo, maybe the wavy lines aren't part of the shoe but are a failed attempt to depict animal feces and we're supposedly being told not to wipe our shoes off on the non-existent grass?
- Then there's the existential issue that no leg is implanted in the shoe. Perhaps you are not supposed to levitate shoes at the zoo? Or maybe you're not allowed to play that popular child's game of shoe skipping in which you sidearm a shoe across the grass in the fashion of a shell or pebble at the beach?
- Of course, what the hell is $6? This part of the sign really puzzles me.
- Maybe the $6 is the cost of playing shoe skipping along the grass or the charge for levitating loafers at the zoo?
- The $6 could be a fine but nothing indicates that on the sign and, anyway, have you ever heard of any fine being a measly $6?
Not that I'm so eager to show my age and all, but, come to think of it, way back in the '60s, comic artist Robert Crumb had this image of four guys who were truckin' What's truckin' you ask? Oh my, how do I explain that word... hmm. You know it's sorta from that period when we rapped with each other and talked about the man and things were cool and groovy and, can you dig it, but, like, y'know, wow, it was far out. In any event, to the extent that I actually remember the '60s, I do recall that there were these raised shoes in the iconic Crumb image. So, maybe the zoo sign means that you can't "Keep on Truckin'" and, if you do, it's gonna cost you $6?
If any of you have an original take or insight as to the Bronx Zoo sign, please post it here.