CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, May 6, 2021

Hessick & Hessick on Constraining Criminal Laws

F. Andrew Hessick and Carissa Byrne Hessick (University of North Carolina School of Law and University of North Carolina School of Law) have posted Constraining Criminal Laws (Minnesota Law Review, Vol. 106, No. forthcoming, 2022) on SSRN. Here is the abstract:
 
Most criminal law is statutory. Although the violation of criminal statutes can result in significantly more serious consequences than violations of other types of statutes, the dominant theories of statutory interpretation do not distinguish between criminal statutes and non-criminal statutes. They say that, when interpreting statutes, courts should always be faithful agents aiming to implement the will of the legislature, and that task does not change depending on whether the statute is criminal

This Article shows that treating the interpretation of criminal statutes the same way as other statutes is a major departure from the past. Historically, courts did not simply try to implement the will of the legislature in interpreting criminal statutes; instead, they played a more active role, adopting a package of interpretive rules that constrained the criminal law. The Article argues that courts should once again adopt this historical approach to interpreting criminal statutes in order to reestablish the judiciary as an important check on overly broad criminal laws, promote democratic accountability, and foster important principles of notice and predictability.

https://lawprofessors.typepad.com/crimprof_blog/2021/05/hessick-hessick-on-constraining-criminal-laws.html

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