Teacher. Robert Leider (George Mason) Guest-Blogging on “The Modern Common Law of Crime”
I am delighted to report that Prof. Robert Leider from Georgia Mason University Law School (Antonin Scalia) will be blogging about his new article this week, The modern common law of crime; here is the summary :
Two visions of American criminal law have emerged. The first view is that criminal law is statutory and postulates that legislatures, and not courts, develop substantive criminal law. The second vision, like the first, begins with legislative supremacy, but ends with democratic dysfunction. From this perspective, while contemporary American criminal law is statutory in theory, in practice American legislatures poorly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who shape the law through their indictment decisions.
This article offers a third vision: that modern American criminal law is first and foremost “conventional” in the British Commonwealth’s sense of the term. That is, much of our criminal law is defined by unwritten standards similar to those of the common law which are widely recognized and generally respected, and yet are not recognized as a formal law enforceable before courts.
This article makes three contributions. First, he argues that there are criminal law conventions. Second, it explains how non-legal checks on prosecutorial power lead to criminal law conventions. Third, it explains how legislatures and courts should respond to a criminal law heavily composed of norms that rely primarily on non-legal sanctions for their application.