Lewis D. Sargentich

In his new book, Lewis D. Sargentich shows how two different kinds of legal argument - rule-based reasoning and reasoning based on principles and policies - share a surprising kinship and serve the same aspiration. He starts with the study of the rule of law in life, a condition of law that serves liberty - here called liberal legality. In pursuit of liberal legality, courts work to uphold people's legal entitlements and to confer evenhanded legal justice. Judges try to achieve the control of reason in law, which is manifest in law's coherence, and to avoid forms of arbitrariness, such as personal moral judgment. Sargentich offers a unified theory of the diverse ways of doing law, and shows that they all arise from the same root, which is a commitment to liberal legality.

The general thesis of this Note is that the overbreadth doctrine is a principled response to the systematic failure of other methods of adjudication to protect first amendment rights adequately. The Note will proceed largely by examining alternatives to scrutiny for overbreadth. The first part will consider theoretical arguments for the as applied and overbreadth methods, and general guidelines for the employment of overbreadth reasoning. The second part will examine the method of rehabilitating overbroad statutes by excising the invalid applications as they arise, and will sketch intrinsic limitations of case by case adjudication as a means of securing the guaranties of the first amendment. In the third part, the Note will consider other methods for remedying statutory overbreadth by excising classes of unconstitutional applications - through the articulation of general rules of first amendment privilege or through the restrictive construction of expansive statutory language. In the last two parts the Note will examine the main competing technique of facial review - interest-balancing - and will consider further guidelines for affirmative use of the overbreadth doctrine.