Should Criminal Statutes Be Interpreted Dynamically?

Abstract

Eskridge's theory of dynamic statutory interpretation focuses largely on regulatory statutes and civil cases, but not on criminal statutes. This is not surprising. The interpretation of criminal statutes is constrained by special concerns of fair notice and separation of powers that would appear to make lenity a more appropriate approach than dynamism. Yet there are several domains in which criminal statutes are interpreted dynamically. This essay explores three. First, some statutes contain concepts broad enough to respond to changing patterns of criminal conduct. For example, legislatures and courts have been struggling with assault weapon legislation, which must be both clear enough to meet due process concerns, and flexible enough to make it difficult to engineer new weapons around the statutory ban. Second, the terms of some statutes have changed in meaning over time to broaden criminal liability beyond that which the enacting legislature envisioned. Third is the process of statutory inflation, whereby dual-remedy statutes, such as the securities laws, receive broad interpretation in civil cases, resulting in increased criminal liability over time as courts employ the expanded civil standards to subsequent criminal cases. The essay illustrates this phenomenon with an insider trading case. Each of these domains raises questions, yet it appears that within a restricted domain, dynamic statutory interpretation is an ordinary part of criminal jurisprudence.