Wednesday, May 28, 2014
Mary Fan (University of Washington - School of Law) has posted Legalization Conflicts and Reliance Defenses (55 Washington University Law Review (Wash. U. St. Louis) (Forthcoming)) on SSRN. Here is the abstract:
This article addresses an open question of pressing practical import – whether people and businesses operating in the shadow of a legalization conflict have a reliance defense. A legalization conflict arises when conduct is decriminalized by one authority while remaining criminalized under another legal regime. For example, drugs, guns, undocumented immigrants, and giving legal advice or financial support for certain activities, may be both illegal and legal under conflicting regimes. People plan their lives, hopes and financial affairs around legalization laws and decrees. If people take actions now in reliance, will they face sanctions later? The question is of great import for many people and businesses, as well as the lawyers who advise them.
The article argues that reliance defenses should be available when governmental actors in charge of enforcing the criminal regime expressly acquiesce in the competing legalization. In such cases, reliance is reasonable and estoppel is required lest people or businesses be lulled by the statements of actors charged with administering the law into a snare of sanctions. Potential objections regarding privileging governmental lawlessness and the danger of giving people a normative choice of law that enables strategic gamesmanship are addressed.