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Federalization, Federal prosecution, Equal protection, Department of Justice, Rationality review, Perez v. United States, United States v. Lopez


Constitutional Law | Criminal Law


From humble beginnings, federal substantive criminal law has grown to prohibit a wide range of conduct, including much that state criminal laws also proscribe. This expansion, commonly called federalization, has recently attracted substantial academic criticism. Some critics bemoan the federal government's intrusion into matters historically left to the states. Others denounce the burden on the federal judiciary of an increasing criminal caseload. However, there has been far less attention devoted to what may be the most troubling consequence of federalization: the dramatically disparate treatment of similarly situated offenders, depending on whether they are prosecuted in federal or state court. This Article addresses that consequence and contends that equal protection doctrine has a role to play in preventing unprincipled disparity.

Publication Citation

Steven D. Clymer, "Equal Justice: The Federalization of Criminal law," 70 Southern California Law Review 643 (1997)