Law Outlines Criminal Law Outlines
Criminal Law with Professor Rachel Barkow at NYU School of Law.
This is a synthesis of all topics in a fall 2019 class, Criminal Law at NYU School of Law. My notes consist of the important elements of each doctrine, the unsettled areas, and policy justifications....
The following is a more accessible plain text extract of the PDF sample above, taken from our Criminal Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Concept of Legality
Introduction
Legality as a Guiding Principle of Statutory Interpretation
Legality as a Constitutional Requirement
RULE: No punishment without law. Law must provide fair and clear notice and control arbitrary and discriminatory discretion and policymaking
Law must meet these requirements:
(1) provide fair notice and
(2) provide clear notice
(3) control arbitrary/ad-hoc discretion/policymaking exercised by enforcement officials
No retroactively lawmaking (statutes)
No common law crimes
Exception Mochan - based on Miller precedent, common law misdemeanor punishing conduct that is injurious to public morality applies to Mochan's solicitation of married woman on her home phone
Common law crime defined from previous judicial decision okay
Problems with
Judicial definition of crime: (a) separation of powers concern (legislature should define crimes); (b) unpredictable; (c) difficult to extract holding and the scope
Statutory definition of crime: (a) insufficient notice about what would be impermissible conduct; (b) courts step in interpret laws and in the process seem to start making laws!
This case shows the importance of legality; without it, broad range of actions can be criminalized even without notice to the public
States have moved away from these crimes and created state penal codes
Problems with creation of this crime (in Mochan) by
(1) judiciary: unpredictable, separation of powers (leave to legislature), difficult to extract holding, making instead of interpreting law
(2) legislature: still not provide fair notice, judiciary steps in to interpret and starts to make law through interpretation
STATUTORY INTERPRETATION
Interpreting statutes - is there clear and fair notice?
General arguments: **[gov arguments/ def arguments]
Grammar and sentence structure of statute
Plain meaning VS. common understanding of statutory language
Legislative intent/history/loopholes (legislative had broad purpose…/legislature did not intend to cover…)
Consistent practices of other statutes
Rule of lenity
Political economy - onus on government to clarify/change laws than for defendants to do so
Unreasonable disparity between punishment in the statute and alleged criminalized conduct
General knowledge/notice of wrong behavior VS. no fair and clear notice
Separation of powers (legislature should be left to decide crimes and consequences, not the court)
Noscitur a sociis canon - "known by one's associates" word is known by the company it keeps (construe term based on surrounding words, not ascribe meaning so broad that is inconsistent with accompanying words)
Ejusdem generis canon - "of the same kind" interpret general catch-all phrase as limited to object enumerated by the specific words preceding it
Surplusage canon - each word in statute should be interpreted to have a unique meaning/function, otherwise redundant
Expressio unius est exclusio alterius - "expression of one thing is exclusion of another" If you have expressly included some things in a category, other things in the category are excluded
McBoyle - airplane does not fall under "self-propelled vehicle"
because statute enumerated only land vehicles, no mention of airplanes and common understanding is land vehicles
RULE Statute must be as clear as possible to give fair warning about what acts are criminalized
Rule of lenity
Substantive canon of interpretation: If law is ambiguous, must resolve the ambiguities in favor of D
Yates - fish does not fall under statute including "tangible object"
Because canons of interpretations (noscitur, ejusdem, surplusage) show tangible object means objects used to record/preserve information and rule of lenity favor D
Dissent thinks tangible object is clear and applies to fish; majority improperly used canons
RB likes rule of lenity because this puts onus on the government to change laws to make them more specific (vs. defendants changing laws after court's broad interpretation)
BUT it may not reflect the legislature's intent to actively criminalize
CONSTITUTIONAL ANALYSIS
Constitutional analysis of statutes - limits on vagueness
Void for Vagueness doctrine
May...
Buy the full version of these notes or essay plans and more in our Criminal Law Outlines.
Criminal Law with Professor Rachel Barkow at NYU School of Law.
This is a synthesis of all topics in a fall 2019 class, Criminal Law at NYU School of Law. My notes consist of the important elements of each doctrine, the unsettled areas, and policy justifications....
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