Finding Room in the Criminal Law for the Desuetude Principle

65 Rutgers L. Rev. Commentaries 1 (2014)

11 Pages Posted: 3 Oct 2017

Date Written: March 11, 2014

Abstract

Overcriminalization -- the overuse, misuse, and abuse of the criminal law -- is a considerable problem today. This paper proposes one remedy to that problem: reliance on “the desuetude principle” in statutory interpretation. That little known precept is that courts may decline to enforce a statute if the public has openly and notoriously disregarded it, and the government has acquiesced in that practice. Desuetude effectively plays the same role for the criminal law that spring cleaning does for garages, basements, and attics: It enables items to be discarded that perhaps once were thought valuable but have not been used recently. To implement that principle, courts should narrowly read little used criminal statutes in order to avoid giving them broad, unanticipated applications.

Keywords: Desuetude, desuetude doctrine, desuetude principle

Suggested Citation

Larkin, Jr., Paul James, Finding Room in the Criminal Law for the Desuetude Principle (March 11, 2014). 65 Rutgers L. Rev. Commentaries 1 (2014). Available at SSRN: https://ssrn.com/abstract=3046865 or http://dx.doi.org/10.2139/ssrn.3046865

Paul James Larkin, Jr. (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

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