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The Mens Rea Requirement and the Moral Legitimacy of Criminal Law

My friend Will Haun, a clerk for U.S. District Judge Claude Hilton of the EDVA, has co-authored with another friend, Prof. John S. Baker, an article in "Engage," the magazine of the Federalist Society.  As Will writes in a note to friends and colleagues:

The article explains how the growing federal criminal code facilitates the erosion of criminal intent requirements, and the problems this raises for the legitimacy of criminal law.  

The essay notes that:

[E]ven some experts reluctant to embrace the general goals of many
overcriminalization advocates consider federal mens rea erosion an "obvious
problem" - it "break[s] the link between punishment and intentional
misbehavior that most contemporary thinkers, not to mention the Founders'
generation, found indispensable to the government's" legitimate authority to
punish. See William G. Otis, Remarks on the Federalization of Criminal Law
Panel at the Federalist Society's 2013 National Student Symposium, in 36
Harv. J.L. & Pub. Pol'y (forthcoming fall 2013).

Will and John are correct in pegging me as at least a mild skeptic about the overcriminalization movement, but their article makes legitimate and important points about the serious dangers that lurk in the merger of criminal law with the regulatory state.

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