The federal criminal-lawmaking system is commonly perceived to be out of control. Once content to leave the bulk of criminal lawmaking to the states, Congress now reacts convulsively to every species of wrongdoing that captures public attention, whether it be carjacking, child molestation, or celebrity stalking.
1 Courts, too, are viewed as having contributed to creeping federal criminalization by recklessly extending mail fraud and other broadly worded statutes to behavior traditionally subject only to private tort remedies.2 Commentators have prescribed a variety of strong medicines for these pathologies, from renewed attention to “strict construction,” “void-for-vagueness,” and other legality related doctrines, to the revival of constitutionally grounded federalism limits on Congress’ criminal-lawmaking powers. Some headway has been made with these proposals, but not much.

 

Copyright
1998 by Dan M. Kahan
This essay is also available at http://www.law.duke.edu/journals/61LCPKahan.
* Professor of Law, University of Chicago.
The author is grateful to the Russell J. Parsons and Jerome S. Weiss Faculty Research Funds at the
University of Chicago Law School for generous financial support.
1. See 18 U.S.C. § 2119 (1994) (carjacking); 42 U.S.C. § 14071 (1994) (requiring reporting of information
on individuals convicted of child molestation); Todd S. Purdum, Two Senators Propose Anti-
Paparazzi Law, N.Y. TIMES, Feb. 18, 1998, at A16: