The Modern Common Law of Crime

75 Pages Posted: 6 Apr 2021 Last revised: 26 Sep 2021

See all articles by Robert Leider

Robert Leider

George Mason University - Antonin Scalia Law School, Faculty

Date Written: April 1, 2021


Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions.

This Article offers a third vision: that modern American criminal law is primarily “conventional” in the British Commonwealth sense of that term. That is, much of our criminal law is defined by unwritten common-law-like norms that are widely acknowledged and generally respected, and yet are not recognized as formal law enforceable in courts. This Article makes three contributions. First, it argues that criminal law conventions exist. Second, it explains how non-legal checks on prosecutorial power bring about criminal law conventions. Third, it provides an account for how legislatures and courts should respond to a criminal law heavily comprised of norms that rely primarily on non-legal sanctions for their enforcement.

Keywords: Convention, Common law, Criminal law, Jury, Prosecutorial discretion

JEL Classification: K14

Suggested Citation

Leider, Robert, The Modern Common Law of Crime (April 1, 2021). Journal of Criminal Law and Criminology, Vol. 111, No. 2, 2021, George Mason Legal Studies Research Paper No. LS 21-07, Available at SSRN:

Robert Leider (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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