Uncovering the Legislative Histories of the Early Mail Fraud Statutes: The Origin of Federal Auxiliary Crimes Jurisdiction
Utah Law Review (forthcoming)
43 Pages Posted: 11 Sep 2020 Last revised: 14 May 2021
Date Written: May 13, 2021
The federal crime of mail fraud is generally viewed as the original federal auxiliary jurisdiction crime—that is, not made a crime because it serves to protect direct federal interests against harm, but rather as an auxiliary to state crime enforcement. In the almost 150 years since the mail fraud statute was enacted, federal auxiliary crimes have proliferated and become the most important part of federal criminal jurisdiction so that today they largely duplicate and overlap with state crimes. It important to know how this form of federal crime jurisdiction originated.
Mail fraud is a crime that scholars, judges and lawyers have viewed as not having any significant legislative history linked to its original enactment in 1872, nor to its two early revisions in 1889 and 1909. The details of its origins have seemed generally unknowable.
This paper for the first time uncovers a rich set of legislative history details related to each of those three early statutes. It turns out that the original mail fraud provision might not have been drafted and legislated except for the fortuitous timing of the addition of a criminal penalty to a closely-related statute. Along the way, how mail fraud came to be the original federal auxiliary jurisdiction crime is explained: It did not start out that way.
Keywords: criminal law, legislative history, mail fraud, federal jurisdiction crime
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