Date of Publication: Fall 2019
Articles:
Bruce A. Baird, Stranger in a Strange Land: Asserting Criminal Jurisdiction Over Strangers
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Abstract: This article examines the constitutional limits on assertion of criminal jurisdiction in the United States over noncitizen nonresidents who commit acts exclusively outside the territorial jurisdiction of the United States. In civil cases there are clear rules to determine whether a defendant can be haled into court in the United States for acts done entirely elsewhere. Despite identical legal considerations, courts in criminal cases resist applying the same rules, even when the facts are indistinguishable. The result is incoherent, results-oriented analysis and a lack of the fairness promised by the Due Process Clause in some cases. This article concludes that the same rules should apply in criminal and civil cases.
Ashley Markson, Criminalizing Coercive Exhibitionism Through “Section213.5(2)”: A Proposal to the Model Penal Code in the Era of “Me Too”
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Abstract: On October 5, 2017, the New York Times published an article condemning Harvey Weinstein. The Me Too movement sprung from this and subsequent allegations against some of the most powerful people in American society. These figures have been accused of behavior that American law often has not yet criminalized. This Note explores the substantive, procedural, and normative considerations in adopting a new provision in the Model Penal Code that proscribes “coercive exhibitionism,” which consists of (primarily) men subjecting women to watching them masturbate. This law would find its home as a subsection within the Model Penal Code’s indecent exposure provision. The text would read as follows:
A person commits a felony if, for the purpose of exerting power over any other person, he or she exposes his or her genitals under circumstances in which his or her conduct is likely to cause offense or alarm, or is likely to put the other person in fear of professional retaliation.
This Note begins by surveying U.S. criminal laws and argues that no current provision adequately addresses coercive exhibitionism. It then considers whether the civil law is a sufficient legal avenue for victims and concludes that there should be concurrent legal avenues for addressing this conduct. This new proposed provision is defended with theoretical and philosophical justifications, and the Article closes with responses to anticipated objections in the adoption of such a law.
Julian R. Murphy, A Tale of Two Canons: Can a Federalism Canon Succeed Where Lenity Has Failed to Limit Federal Criminal Laws?
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Abstract: For decades now, a paradox has existed by which the Racketeer Influenced Corrupt Organizations Act (“RICO”) is interpreted strictly in its civil application and expansively in its criminal application. This phenomenon is paradoxical because it inverts the traditional approach to the interpretation of statutes, in particular the rule of lenity requiring the strict interpretation of criminal statutes. The two explanations most commonly proffered for this surprising state of affairs are RICO’s “liberal construction clause” and the judicial expansion of RICO’s criminal application in order to capture morally culpable defendants. Neither of these explanations is jurisprudentially defendable and many scholars and courts agree that something needs to be done to constrain the extraordinary reach of criminal RICO. This Article offers a solution: a federalism-inspired clear statement rule. Building upon a nascent body of case law, this Article argues that a federalism-inspired clear statement rule in the RICO context is not only constitutionally and doctrinally sound but may offer practical and enforceable limits on criminal RICO’s reach where lenity has failed.
The first half of the Article is diagnostic, describing how and why lenity has failed to limit the reach of criminal RICO. The second half argues for the viability of the proposed federalism-inspired clear statement rule and traces its ancestry through four decades of Supreme Court case law. The Article draws not only upon RICO jurisprudence but also cases interpreting major federal hybrid statutes, including the Hobbes Act, the Sherman Antitrust Act, and the mail and wire fraud statutes. The overall aim of these various citations is to suggest that the problem of federal overcriminalization is not unique to RICO and, concomitantly, that the solution proposed here might be transposed to other statutory schemes.