The law of attempt requires a court to determine when trying to commit a crime is, in itself, conduct that deserves criminal punishment. Common-law courts were cautious not to push the boundaries of attempt crimes too far, and early definitions of attempt required that a defendant come very close to the completion of an intended crime before he could be convicted. As Congress has codified criminal law, it has created attempt statutes without defining attempt, presumably believing that courts would continue to use common-law meanings as they had always done. This is exactly what happened until the late twentieth century, when federal courts began to adopt a new, harsher formulation that had been proposed in the American Law Institute’s Model Penal Code (MPC). This Note examines the strange process through which federal courts expanded the definition of a background principle of criminal law, and argues that they were wrong to do so. Judges who ignore such deep common-law roots usurp the legislature’s role in defining crimes, and create confusion as to the true meaning of criminal statutes.
Michael R. Fishman, Defining Attempts: Mandujano’s Error, 65 Duke L.J. 345 (2015).
Available at: http://scholarship.law.duke.edu/dlj/vol65/iss2/3