The Myth of Common Law Crimes

56 Pages Posted: 16 Mar 2018

See all articles by Carissa Byrne Hessick

Carissa Byrne Hessick

University of North Carolina School of Law

Date Written: March 13, 2018

Abstract

Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate to prosecutors questions about the scope of criminal law, and judges have failed to serve as a check on that power. As a consequence, the current system provides less notice, less accountability, less separation of powers, and more potential for abuse than the common law system. Thus, to the extent the statute has displaced common law, the shift is not a story of the triumph of the rule of law; it is instead a story of legislative excess, prosecutorial supremacy, and judicial abdication. The conventional wisdom of criminal common law is not only false, but it also conceals the failings of our current criminal justice system.

Keywords: criminal law, conventional wisdom, separation of powers, due process, democratic accountability

Suggested Citation

Hessick, Carissa Byrne, The Myth of Common Law Crimes (March 13, 2018). Virginia Law Review, 2019 Vol. 105, No. (Forthcoming); UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3139831

Carissa Byrne Hessick (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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