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…
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…
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…