Law Outlines Criminal Law Outlines
Criminal Law with Professor Rachel Barkow at NYU School of Law.
This is a synthesis of all topics in a fall 2019 class, Criminal Law at NYU School of Law. My notes consist of the important elements of each doctrine, the unsettled areas, and policy justifications....
The following is a more accessible plain text extract of the PDF sample above, taken from our Criminal Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Strict Liability
Criminal liability imposed regardless of MR
Theme: presumption of MR requirement if common law analogue, SL only for public welfare offenses
MPC Framework (don't like SL, motivated by retributive concerns)
MPC 2.05:
No SL unless
Violations - minor crimes with only fines, no incarceration OR
Legislature passes new statute clearly asserting SL for certain crimes
Common Law Framework
Criminalize acts that don't involve legal or moral wrongs without inquiring into mental state
Look for indications of Congressional intent, expressed or implied, for crime to be strict liability or not
SL offenses often involve use or sale of potentially harmful or inherently dangerous items and often are public welfare offenses
Liquor, food, sanitary, building, medicine, traffic laws
Morissette
Offense of "knowing conversion of gov property" requires MR
Because it does not fit in the public welfare box + related to theft (a common law/traditional crime) > no SL
Characteristics of strict liability crime
Public welfare offense/regulatory crimes
Does not target a specific person or object, only against general welfare
Offense is trying to protect public health, well-being, safety, lives by putting burden on person standing in responsible relation to a public danger (language from Balint)
Involves an activity that congress wants to deter or incentivize careful handling to prevent harm
(1) Mass production operation
Ex. Pharmaceuticals, food distribution (Balint, Dotterweich)
(2) Inherently serious, dangerous, injurious nature causes high risk of danger, NOT direct injury
Ex. Hand-grenades (Freed)
(3) Mass and far-reaching impacts on public (usually consumers)
(4) Sophisticated and specialized actors - on notice and in best position to avoid problems
(5) New crime or new regulatory regime, addressing new problem VS. history and tradition
Nature of crime not recognized by common law and addressing a new problem
Ex. Pharmaceutical drugs
NOT analogue of common law or traditional crimes
NOT theft/conversion, NOT guns
(6) Small punishment
High penalties/felony designation indicate Congress is punishing a wrongdoing that is more than posing a possible danger to greater society and intended a high burden of proof
Ex. Staples - felony punishment is incompatible with theory of public welfare crimes
(7) Would not criminalize broad range of apparently innocent conduct/conduct easy to innocently violate
Guns (Staples) - if SL for possession of automatic gun, many unsuspecting gun owners could have criminal liability
(8) Conviction does not create same stigma as criminal conviction
Examples
Staples (possession of guns): long tradition, constitutionality and commonness of gun ownership + high penalties (felony) > no SL
Balint (prohibited drugs distribution): public welfare offense > SL
Dotterweich (misbranded drug distribution): public welfare office > SL
Freed (possession of hand grenades): no long tradition, inherently dangerous > SL
X-Citement (shipping child porn): high penalties + not inherently dangerous, child/sex element makes crime wrongful > presumption of MR requirement > no SL
Policy: need SL because (mostly utilitarian concerns)
(1) Incentivize people to take as much care as possible (more than reasonable care) to prevent possible danger to public welfare (utilitarian) - maximize compliance with law
SL is stronger deterrence of careless behavior than a...
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Criminal Law with Professor Rachel Barkow at NYU School of Law.
This is a synthesis of all topics in a fall 2019 class, Criminal Law at NYU School of Law. My notes consist of the important elements of each doctrine, the unsettled areas, and policy justifications....
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