Academic journal article Harvard Law Review

Desuetude

Academic journal article Harvard Law Review

Desuetude

Article excerpt

Like the cicadae that will from time to time descend upon the Finger Lakes region of upstate New York, (1) desuetude is a concept that occasionally appears in the criminal law literature but usually remains dormant. (2) This Note represents the latest reemergence of that brood. In twenty-one pages, the doctrine surfaces from its own period of neglect and sings a new song, with this refrain: criminal law calls for the self-correction mechanism that desuetude provides. In this iteration of the cicadic rhythm, it is hoped that desuetude will burst through the husk of formalistic and erroneous analysis that has, to this point, constrained the doctrine's proper growth.

Desuetude, the obscure doctrine by which a legislative enactment is judicially abrogated following a long period of nonenforcement, currently enjoys recognition in the courts of West Virginia and nowhere else. (3) This Note joins a chorus of scholars from the past century who hold out desuetude as a sensible doctrine that should be incorporated into American law. (4) The best argument in favor of desuetude might also be the simplest. In the words of one commentator, "it is part of the intelligent cooperation the courts owe the legislature to relieve it from the burden of seeking out and repealing statutes that clearly serve no modern purpose." (5) But the judicial abrogation of obsolete statutes raises constitutional questions that outpace such pragmatic argumentation and demand for their resolution a more theoretical approach. On both sides of the issue, (6) the arguments that have slowly unfolded over the past century leave much to be desired. This Note attempts to remedy the deficiency. (7)

I. DESUETUDE: ABROGATION BY NONENFORCEMENT

A. Desuetude Doctrine in the Courts

As pleasing as it is to the ear, the word "desuetude"-meaning "the condition or state into which anything falls when one ceases to use or practise it" (8) -is one that rarely appears in everyday speech. Use of the term is hardly more frequent in English-language discussions of the law. When employed in the latter context, desuetude describes the doctrine by which a legislative enactment is judicially abrogated following a long period of intentional nonenforcement and notorious disregard. (9)

The legal foundation of desuetude begins with the Roman jurist Julian, who wrote that "statutes may be abrogated not only by a vote of the legislator, but also by desuetude with the tacit consent of all." (10) From these Roman-law roots, desuetude found its way into several legal traditions. (11) Of particular interest is the argument of the German Historical School (chiefly Savigny) recognizing the legitimacy of desuetude. On this view, desuetude is an affirmative creation of quasi-law, stemming from the Volksgeist, or the "historically developed legal consciousness of a particular people." (12) However, the argument from the civil law tradition is of little use in this country, relying as it does on a conception of customary lawmaking that is foreign to the common law tradition. (13)

What of those American jurisdictions that have accepted the doctrine? Little effort is needed to canvass the relevant case law, given that West Virginia alone recognizes desuetude as a valid defense. In Committee on Legal Ethics v. Printz, (14) the Supreme Court of Appeals of West Virginia described a three-part inquiry for determining whether to abrogate a desuete penal statute: the crime in question must be malum prohibitum; there must be "open, notorious, and pervasive violation of the statute for a long period"; and there must be a conspicuous policy of nonenforcement. (15) Earlier decisions in other state courts recognizing the doctrine have been overturned, (16) leaving West Virginia as an outlier in this field.

In United States v. Elliott, (17) the principal discussion of desuetude by a federal court, a judge in the Southern District of New York suggested that desuetude might be a winning defense if framed in terms of a due process or equal protection challenge to an obsolete law. …

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