Randy Gordon (Texas A&M University School of Law; Duane Morris LLP) has posted The Crime of Being Immoral (Willamette Law Review) on SSRN. Here is the abstract:
Despite a general abhorrence of retrospective laws as a matter of legal theory and Constitutional dictate, U.S. courts continue—in essence—to create new crimes by injecting fuzzy moral considerations into determinations under the federal fraud statutes. They do so by deeming a failure to act with “moral uprightness” sufficient to constitute criminal fraud. Under such an amorphous standard, the unwitting find themselves in a legal bind, even though their conduct may not involve any of the traditional elements of common-law fraud. This Article traces the roots of novel fraud theories with tools drawn from legal theory, linguistics, and case law explication.
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