Academic

Green on Husak on Overcriminalization

By Lawrence Solum

Stuart P. Green (Rutgers Law School-Newark) has posted Is There Too Much Criminal Law? (Ohio State Journal of Criminal Law, Vol. 6, 2009) on SSRN. Here is the abstract:

In his new book, Overcriminalization: The Limits of the Criminal Law, Douglas Husak offers an ambitious and insightful theory regarding when conduct should be subject to criminal sanctions. In this brief review, I focus primarily on the seven conditions that Husak says should constrain such decisions: constraints based on the idea of nontrivial harm or evil, wrongfulness, desert, burden of proof, substantial state interest, direct advancement of such interest, and minimum extent necessary to achieve such ends. While I agree that most of these constraints should play a role in determining what conduct gets criminalized, I am skeptical about both the sources from which the constraints can be drawn and the precise scope and application of the principles. I also believe that a more explicit constraint based on the significant costs of criminalization should have been included, since a proposed criminal statute might directly advance a substantial state interest and be no more extensive than necessary to achieve such purpose and yet its costs might still outweigh its benefits. The review also touches on Husak?s persuasive critique of the law and economics approach to criminalization.

Husak's book was a legal theory bookworm selection. Recommended.

Full post as published by Legal Theory Blog on May 08, 2009 (boomark / email).