FINDING ROOM IN THE CRIMINAL LAW FOR THE DESUETUDE PRINCIPLE
Paul J. Larkin, Jr., Esq.
A problem facing the criminal justice system today is the phenomenon known as “overcriminalization,” the neologism given to the overuse and misuse of the criminal law. This commentary argues that courts should rely on “the desuetude principle” to remedy the problem: little-used criminal statutes should be interpreted narrowly to avoid broad, unanticipated applications.
In Villanueva v. Zimmer, the Appellate Division settled an arguably open issue of law in the personal injury context. Specifically, the court analyzed and determined the evidentiary value of personal injury plaintiffs’ Social Security Administration disability awards at the time of the injured party’s trial. The decision provides much needed guidance for plaintiff’s lawyers and the defense bar in addressing Social Security disability awards in personal injury cases.
Boumediene was doomed the day it was decided. In failing to elaborate on the substantive rights of aliens detained overseas, in assigning exclusive jurisdiction over post-Boumediene habeas claims to a circuit court of appeals that doubted the wisdom of intervention, and in fashioning a balancing test for federal court jurisdiction that only the prison at Guantánamo could meet, Boumediene laid the blueprint for its own elusion. Justice Scalia crisply summarized the strategy: henceforth, to slip through Boumediene’s grasp, the military would be well advised to keep prisoners in Afghanistan, transfer them to other foreign military bases, and turn them over to allies for detention.
In the United States, free market competition and consumer choice are uniquely safeguarded through the antitrust laws contained in the Sherman and Clayton Acts. The antitrust laws enable prosecutors (at the Department of Justice and the Federal Trade Commission) and private citizens to prevent and punish anticompetitive activities. As legal tools, they are only as good as the prosecutors that wield them. These laws are capable of reversing anticompetitive conduct, and, in many cases, preventing the negative effects which emanate from that conduct. When it comes to preventing those effects, the timing of legal action is often paramount. There is one cautionary tale that vividly illustrates this proposition, particularly because it continues to cast a shadow today. This Commentary will revisit United States v. National City Lines, in which the government successfully prosecuted a notorious conspiracy among the nation’s largest corporations—but not before the conspiracy had taken its intended toll by destroying dozens of urban rail systems.
COMING SOON!: Volume 66, Issue 1
Congratulations to Rutgers Law Review Staff Member Rinat Shangeeta ’15 for Receiving the Mark T. Banner Scholarship! The Mark T. Banner Scholarship, offered by the Richard Linn American Inn of Court, is a reflection of the Inn’s commitment to fostering the development of intellectual property lawyers of high ethics, civility and professionalism, and especially those from diverse backgrounds.
Recap of Symposium 2011
Unsettled Foundations, Uncertain Results:
9/11 and the Law, 10 Years After
A New Type of War
The Story of the FAA and NORAD Response to the September 11, 2001 Attacks