Legal Memorandum posted April 11, 2013 by Paul Larkin
The Need for a Mistake of Law Defense as a Response to Overcriminalization
By heavily regulating criminal procedure alone but leaving the definition of crimes and offenses almost entirely in the hands of the political process, the Supreme Court has left open only one option to legislators seeking to address the problem of crime: Make more and more conduct criminal. The result in recent decades has been the “overcriminalization” of the law, with…
Legal Memorandum posted September 21, 2012 by Paul Larkin, Elizabeth Slattery
Overview of the Supreme Court’s October Term, 2012
Abstract: Given the excitement and importance of the recently concluded Supreme Court term, it is possible that the upcoming term will lack the same dazzling array of issues; just as not every baseball lineup is loaded with players like the 1927 Yankees Murderers Row, not every Supreme Court term is chock-full of Hall of Fame cases. Still, the next few years promise their…
Issue Brief posted May 10, 2012 by Paul Larkin
The FOCUS Act Hearing: Unpersuasive Criticisms and Tacit Admissions
Thankfully, the law sometimes reflects common sense. Here’s an example: Innocent people ordinarily do not remain silent when accused of having committed a crime or some other misconduct. As the result, it is reasonable to infer that such an accusation is true if a person does not deny it. In the law, that sensible proposition is embodied in the doctrine of “Tacit…
Legal Memorandum posted May 8, 2012 by Paul Larkin
The FOCUS Act and Environmentalism
Abstract: With regard to the Lacey Act, The Heritage Foundation and the Union of Concerned Scientists (UCS) can agree on one point: The act should be enforced through the civil justice system or the administrative process. In a recent paper, however, the UCS has emerged as a vocal advocate for criminal enforcement of the Lacey Act, an untenable position that, given…
Issue Brief posted May 7, 2012 by Paul Larkin
The FOCUS Act and Federal Law Enforcement
An article by Jon Adler at the Police: The Law Enforcement Magazine Website,[1] written on behalf of the Federal Law Enforcement Officers Association (FLEOA), is quite critical of the recently introduced Freedom from Over-Criminalization and Unjust Seizures (FOCUS) Act of 2012. The thrust of the article is that the FOCUS Act would put federal officers and agents at risk…
Issue Brief posted March 8, 2012 by Paul Larkin
The STOCK Act and Fraud: Competing Visions, Common Goal to Address Government Corruption
Last month, the House and Senate passed, by overwhelming majorities, different versions of a bill entitled the Stop Trading on Congressional Knowledge Act (STOCK Act).[1] The bills would acknowledge that the insider trading laws apply to federal officials. The Senate version would also reach other perceived public corruption problems. An earlier Issue Brief discussed the…
Issue Brief posted March 7, 2012 by Paul Larkin
The STOCK Act and Gratuities: Competing Visions, Common Goal
Last month, Congress considered two different versions of a bill—the Stop Trading on Congressional Knowledge Act (STOCK Act)[1]—that would make clear that the federal insider trading laws apply to federal officials. The Senate and House of Representatives have passed different versions of the STOCK Act, each by overwhelming majorities: 96–3 in the Senate and 417–2 in the…
Legal Memorandum posted January 9, 2012 by Paul Larkin
When Fighting Crime Becomes Piling On: The Overcriminalization of Fraud
Abstract: Are maple syrup felons sufficiently heinous that they should be imprisoned for perhaps as long as 45 years? Some members of the U.S. Senate seem to believe the answer is yes: How else to explain the provisions of the Maple Agriculture Protection and Law Enforcement Act of 2011? This bill, known as the MAPLE Act, would make it a “federal crime…for anyone…
Legal Memorandum posted December 13, 2011 by Paul Larkin
Overcriminalization: The Legislative Side of the Problem
Abstract: The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization.” This phenomenon is likely to lead to a variety of problems for a public trying to comply with the law in good faith. While many of these issues have already been discussed, one problem created by the overcriminalization…