Episode 188: Common Law Crimes

If you were charged with a crime, would you rather it be one written down by a legislature and codified in the tomes of a state's laws or one marked out by the decisions of judges over time? You're hardly alone if you chose the first option, and it is in fact the conventional wisdom that we have rightfully abandoned and prohibited "common law crimes." Not so fast, says our guest, Carissa Hessick. Our system of criminal law is still host to a good deal of common law, in the interstices of statutory text, through explicit incorporation, and sometimes from thin air. More importantly, if what you care about is the rule of law, then our system of code, in which prosecutors exercise less visible and less precedent-governed authority than any common law judge, hardly fits the bill.

Carissa Hessick’s faculty profile and writing

Carissa Hessick, The Myth of Common Law Crimes

United States v. Hudson and Goodwin

Bordenkircher v. Hayes

Yates v. United States

Bond v. United States

Carissa Hessick, Vagueness Principles

Bob Ratterman, Judicial Candidate Expresses Frustration with the Plea Bargain Process

James Burnham, Why Don’t Courts Dismiss Indictments? A Simple Suggestion For Making Federal Criminal Law A Little Less Lawless

Ion Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History

Special Guest: Carissa Hessick.