Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate questions about the scope of criminal law to prosecutors, and judges have failed to serve as a check on that power. As a consequence, the current system provides less notice, less accountability, less separation of powers, and more potential for abuse than the common law system. Thus, to the extent the statute has displaced common law, the shift is not a story of the triumph of the rule of law; it is instead a story of legislative excess, prosecutorial supremacy, and judicial abdication. The conventional wisdom of criminal common law is not only false, but it also conceals the failings of our current criminal justice system.
Pardoning Contempt—Reconsidering the Criminal-Civil Divide
The Supreme Court has never authoritatively addressed the President’s power to pardon civil contempt. But in Ex parte Grossman, Chief Justice Taft argued in dictum that the President categorically lacked such power. That conclusion, now taken for granted, purportedly rested on English precedent as crystallized by Blackstone. But pre-ratification English cases and treatises fail to support the criminal-civil distinction as the boundary of the President’s power to pardon contempt. To the extent those English sources reveal at least an ambiguity in Article II, post-ratification American practice and normative considerations lend additional support to an alternative framework. Identifying a neglected indeterminacy as to the pardon power’s reach over certain civil contemnors, this Note rejects Taft’s criminal-civil divide and proposes a limiting principle centered on private legal interests. History, common law precedent, and functional considerations support a Constitution that permits pardoning contempt unless the pardon extinguishes private legal interests of third parties. Under this view, the President can pardon all criminal contemnors and can release from coercive fines or imprisonment those civil contemnors who owe tangible, but not equitable, relief. For criminal contemnors and this subset of civil contemnors, presidential pardons may face political or ethical obstacles, but should not face constitutional ones.
Confining Cases to Their Facts
Stare decisis is the mainstay of doctrinal stability. But through the little-known expedient of “confining a case to its facts,” courts can evade the pull of stare decisis by overruling everything a decision stands for except its precise result. This doctrinal workaround has enabled courts to sidestep the formal requirements that attend overruling and quietly undermine precedent without stirring public interest. But confining’s conveniences are offset by its considerable dangers: it cuts courts loose from the constraints of stare decisis; it requires judges to engage in unprincipled, fact-bound adjudication; it dilutes the integrity of the law by enshrining contradictory legal principles; and it conflicts with modern retroactivity doctrine. Remarkably, the law of precedent has failed to account for this unusual practice. Confining and overruling have been deployed interchangeably, with little regard for their distinctive attributes. In this first in-depth treatment of confining, we offer guidelines for its responsible use—ones designed to place the practice on sounder theoretical footing and to end its indiscriminate use across the federal and state court systems.