Center for Law and Philosophy
To the modern lawyer, the rules of common law theft offenses do not seem ordered by any coherent principle. In this Article, however, Professor Fletcher shows that the common law of larceny can be understood in terms of two structural principles, possessorial immunity and manifest criminality. In the eighteenth and nineteenth centuries, as the modern style of legal thought evolved, first commentators and then courts lost their ability to understand these principles and came to rely on intent as the central element of criminal liability. As a result of this transformation, Professor Fletcher argues, the range of circumstances that can provoke prosecutorial scrutiny has greatly expanded and the nature of such inquiry has grown more intrusive. Our interest in privacy, Professor Fletcher suggests, should lead us to reconsider the system of common law larceny; if we cannot revive it, we must at least remember the values, now lost, which were once implicit in it.
George P. Fletcher,
The Metamorphosis of Larceny,
Harv. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1022