Causing Mischief for Taylor's Categorical Approach: Applying 'Legal Imagination' to Duenas-Alvarez

43 Pages Posted: 9 Aug 2010 Last revised: 24 Apr 2011

See all articles by Doug Keller

Doug Keller

affiliation not provided to SSRN

Date Written: August 8, 2010


This Article examines a recent trend in some circuits to hobble the “categorical approach.” That doctrine finds roots in Taylor v. United States, 495 U.S. 575 (1990), where the Supreme Court selected it to deal with the vexing question of how to determine what someone was previously “convicted of” for purposes of immigration and criminal law. For example, how do you know if someone was previously “convicted of” generic “burglary”? The categorical approach requires courts to answer that question by comparing the elements of the state statute the individual was convicted of (rather than the individual’s actual conduct) with the elements of generic burglary. In Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007), the Supreme Court stated that courts should not use “legal imagination” when using the categorical approach. Thereafter, a circuit split developed over the meaning of the Court’s comment. Some circuits believe that the Court dramatically changed Taylor by requiring courts to determine how a state statute has been applied in practice before holding that its elements do not encompass a qualifying offense. Other circuits believe that the Court was merely warning courts against interpreting the scope of the elements of state statutes in broad, novel ways. This Article argues that these later courts have it right -- that the Court did not intend to alter the categorical approach and instead wanted to warn courts against misinterpreting state law. In the course of justifying that conclusion, this Article offers a defense of the much-beleaguered categorical approach -- and its peculiar results.

Keywords: Taylor, Duenas-Alvarez, categorical approach, convicted of, legal imagination

Suggested Citation

Keller, Doug, Causing Mischief for Taylor's Categorical Approach: Applying 'Legal Imagination' to Duenas-Alvarez (August 8, 2010). George Mason Law Review, Vol. 18, p. 625, 2011, Available at SSRN:

Doug Keller (Contact Author)

affiliation not provided to SSRN

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