"Alan goes to Korea, where we have some big orders coming through," Ron explained recently over lunch--a hamburger, medium-well, with fries--in the V.I.P. booth by the door in the Polo Lounge, at the Beverly Hills Hotel. "I call Alan on the phone. I wake him up. It was two in the morning there. And these are my exact words: `Stop. Do not pursue the bread-and-batter machine. I will pick it up later. This other project needs to come first.' " The other project, his inspiration, was a device capable of smoking meats indoors without creating odors that can suffuse the air and permeate furniture. Ron had a version of the indoor smoker on his porch--"a Rube Goldberg kind of thing" that he'd worked on a year earlier--and, on a whim, he cooked a chicken in it. "That chicken was so good that I said to myself"--and with his left hand Ron began to pound on the table--"This is the best chicken sandwich I have ever had in my life." He turned to me: "How many times have you had a smoked-turkey sandwich? Maybe you have a smoked- turkey or a smoked-chicken sandwich once every six months. Once! How many times have you had smoked salmon? Aah. More. I'm going to say you come across smoked salmon as an hors d'oeuvre or an entrée once every three months. Baby-back ribs? Depends on which restaurant you order ribs at. Smoked sausage, same thing. You touch on smoked food"--he leaned in and poked my arm for emphasis--"but I know one thing, Malcolm. You don't have a smoker."
- Malcolm Gladwell, "The Pitchman." The New Yorker, October 30, 2000
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DESUETUDE!
Desuetude does not apply to violations of the United States Constitution. In Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970), the United States Supreme Court asserted that: "It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it."
It may, however, have validity as a doctrine in defense of penal prosecution. In 1825, the Pennsylvania Supreme Court declined to enforce the traditional punishment of ducking for women convicted as common scolds, stating that "total disuse of any civil institution for ages past, may afford just and rational objections against disrespected and superannuated ordinances." Wright v. Crane, 13 Serg. & Rawle 220, 228 (Pa. 1825).
The seminal modern case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia Supreme Court of Appeals held that penal statutes may become void under the doctrine of desuetude if:
1. The statute proscribes only acts that are malum prohibitum and not malum in se;
2. There has been open, notorious and pervasive violation of the statute for a long period; and
3. There has been a conspicuous policy of nonenforcement of the statute.
This holding was reaffirmed in 2003 in State ex rel. Canterbury v. Blake, 584 S.E.2d 512 (W. Va. 2003).
While it may not be a violation of due process to enforce a desuetudinal law, the fact that a law has long gone unenforced may present a bar to standing in a suit to prevent its future enforcement. In Poe v. Ullman, the Supreme Court refused to hear a challenge to Connecticut's ban on birth control, writing:
The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis . . . . 'Deeply embedded traditional ways of carrying out state policy'—or not carrying it out—'are often tougher and truer law than the dead words of the written text.'
Shortly thereafter, Connecticut's birth control law was enforced, and struck down, in Griswold v. Connecticut.
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