Fast Times in Federal Court and the Need for Flexibility

Abstract

The shifting landscape of criminal prosecutions involving designer drugs presents several novel legal issues. There are different ways to address these issues when they are the result of the production, possession, or distribution of as-of-yet unregulated substances. One way is for the legislature to enact appropriate legislation as quickly as the need for regulation or criminalization arises—a lofty, if not unrealistic, goal. The other is to guide the courts with general principles of applicability—the approach adopted by Congress through the enactment of the Analogue Act. This small but unfortunately quickly expanding area of federal criminal law supports the notion that providing the courts with flexibility is necessary and ultimately consistent with the legislative approach in this field