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Nearly a decade ago in the pages of this journal, in discussing the nature of overbreadth challenges, I drew attention to what may be characterized as the "valid rule requirement." A defendant in a coercive action always has standing to challenge the rule actually applied to him. This means that he can resist sanctions unless they are imposed in accordance with a constitutionally valid rule, whether or not his own conduct is constitutionally privileged. The valid rule requirement focuses upon the rule as applied to the defendant by the jury instructions. In Pope v. Illinois the Court held that harmless error analysis could be applied to jury instructions that contained a constitutionally infirm liability-imposing rule. Four dissenting justices thought that this result violated the defendant's Sixth Amendment right to trial by jury. For me, the difficulty is elsewhere, and Pope provides an occasion for further reflection on the valid rule requirement. Is harmless error analysis ever appropriate when a state court conviction rests upon a constitutionally infirm rule? My conclusion is that it is not. This paper is an account of my difficulties in addressing this seemingly rather straightforward question.



This article is available with permission from the University of Chicago Press. The original version can be found at the above DOI.