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  • Legal Memorandum posted June 19, 2013 by Paul Larkin Reasonably Construing the Computer Fraud and Abuse Act to Avoid Overcriminalization

    The Computer Fraud and Abuse Act (CFAA) is the federal government’s principal legal weapon in the battle to protect computer systems and electronically stored information from thieves and vandals.[1] A criminal statute that can be enforced by the U.S. Department of Justice, the CFAA also authorizes private parties to bring a civil damages action against anyone who…

  • Testimony posted June 19, 2013 by John Malcolm Defining the Problem and Scope of Over-criminalization and Over-federalization

    Testimony before the Committee on the Judiciary Over-criminalization Task Force U.S. House of Representatives June 14, 2013 John G. Malcolm Rule of Law Programs Policy Director and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow The Heritage Foundation     Mr. Chairman, Mr. Ranking Member, and other Members of Congress: Thank you for the…

  • Backgrounder posted June 17, 2013 by Paul Rosenzweig Ignorance of the Law Is No Excuse, But It Is Reality

    Everyone in America knows that “ignorance of the law is no excuse.” It is drummed into students from their first civics class in elementary school, so much so that it is a part of our cultural heritage. The phrase captures an important concept about culpability. It stems from a time when criminal law was grounded in morality and a shared understanding of wrongfulness and…

  • Commentary posted June 15, 2013 by Hans A. von Spakovsky Stop the Farm Bill: FDR's Socialist Structure Still Violating Farmers

    The massive farm bill being considered by the House of Representatives — the Federal Agriculture Reform and Risk Management Act (H.R. 1947) — exemplifies the regulatory excess that characterizes the federal government today and which dominates our agricultural policy. Much of this government control began implementation in the 1930s, led by advisors and aides to the…

  • Commentary posted June 14, 2013 by Hans A. von Spakovsky The Latest Election News with 2014 Just Around the Corner

    Editor's note: This commentary was coauthored by John Fund. From Florida to Maryland to New York City, there has been quite a bit of election news recently involving fraud and the potential for fraud that shows the continuing vulnerabilities in our election process and illustrates the fact that there are those who are willing to take advantage of those weaknesses. In…

  • Legal Memorandum posted June 13, 2013 by Elizabeth Slattery How to Spot Judicial Activism: Three Recent Examples

    The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it—certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of…

  • Issue Brief posted June 13, 2013 by Paul Rosenzweig, David Inserra Government Cyber Failures Reveal Weaknesses of Regulatory Approach to Cybersecurity

    Last year, the Senate twice voted down the Cybersecurity Act of 2012 because of concerns that a regulatory approach might harm U.S. cybersecurity efforts. Despite these concerns, President Obama issued a cybersecurity executive order that uses a regulatory or standards-based approach to require additional security from private-sector organizations. The government,…

  • Commentary posted June 13, 2013 by Edwin Meese III I Recall the 1986 Immigration Act Rather Differently

    Karl Rove's recollection of the 1986 Immigration Reform and Control Act ("Immigration Reform and the Hispanic Vote," op-ed, June 6) is, shall we say, highly selective. That law, he writes, "essentially told those here illegally that if they had arrived in the U.S. prior to 1982 and wanted to become citizens, simply raise your right hand." He asserts that the Gang of Eight…

  • Legal Memorandum posted June 12, 2013 by Paul Larkin The Injustice of Imposing Domestic Criminal Liability for a Violation of Foreign Law

    Introduction: Reconciling Two Inconsistent Principles Everyone is presumed to know the law, yet no one can be held criminally liable for violating a law that he or she cannot understand. The difficulty involved in trying to reconcile these two propositions has real-life consequences. People have, in fact, been sent to prison for making a mistake of law. The…

  • Legal Memorandum posted June 12, 2013 by Paul Larkin Fighting Back Against Overcriminalization: The Elements of a Mistake of Law Defense

    A myriad of problems are caused today by overcriminalization—the misuse and overuse of criminal law, which ensnares average citizens for committing acts that are not morally blameworthy and that most people would not know are crimes. Punishing someone who is morally blameless is unjust and engenders disrespect for our legal system. As described in a previous Heritage…

  • Legal Memorandum posted June 12, 2013 by Paul Larkin The Dangers of the “Trust Us” Approach to Statutory Interpretation

    In society’s fight against crime, police and prosecutors are the tip of the spear. They identify the culprits, collect the evidence, and present it to a judge and jury. The American criminal justice system grants the police and prosecutors broad discretion to decide which parties to arrest and charge and what charges to bring.[1] The law also presumes that such decisions…

  • Commentary posted June 11, 2013 by Hans A. von Spakovsky No Fix For Our Immigration Courts

    The immigration bill now being considered on the floor of the U.S. Senate does a lot of things — many of them bad. One thing it does not do, however, is fix our broken immigration courts.   When the Department of Homeland Security (DHS) detains illegal immigrants and initiates deportation proceedings against them, those cases go to immigration courts in the Justice…

  • Commentary posted June 7, 2013 by Hans A. von Spakovsky 'Whites Need Not Apply' at D.C. Labor Board?

    Ondray Harris, the African-American executive director of the Public Employee Relations Board of the District of Columbia, stepped down last week. His resignation letter provides a disturbing look at alleged discriminatory and partisan conduct by the members of the board tasked with overseeing labor issues and the D.C. government's relations with public…

  • Commentary posted June 7, 2013 by Paul Rosenzweig The NSA's Phone Collection Order -- It May be Legal, but is it Wise?

    The revelation that the National Security Agency (NSA) has secured a court order directing Verizon to provide it with call data has sparked controversy. And, rightly so. If the order is genuine (and nobody has denied that it is), it reflects a significant expansion of America’s surveillance apparatus – one that should at a minimum be closely examined. First, some…

  • Commentary posted May 27, 2013 by Hans A. von Spakovsky Think Tank Takers: Did Lois Lerner Incriminate Herself?

    It is not clear that Lois Lerner, the embattled head of the IRS's tax-exempt organizations office, waived her Fifth Amendment right against self-incrimination, as has been suggested by commentators ... when she briefly appeared before the House Oversight Committee investigating the targeting of conservative organizations. Lerner proclaimed her innocence before asserting…