Volume 86, Issue 2
Articles
This Article confronts the consensus on American criminal law politics and democratic process—a worried perception of ever-expanding criminal codes punishing innocuous behavior and pushing prosecutorial discretion to the limit. It explains that a close look at contemporary practice and the history of American crime legislation undermines the consensus. Overlooked is the ongoing process of decriminalization by state legislatures. Also, evidence suggests that contemporary state legislatures decline to enact most bills proposing expanded criminal laws.
Explanations for this overlooked story of American decriminalization and noncriminalization are numerous. For example, surprisingly, interest-group pressures on legislatures sometimes drive decriminalization. Also, politically accountable prosecutors rarely prosecute many crimes that the public cares little about but that scholars complain about. This Article unpacks the scholarly literature to identify several distinct complaints arising from democratic dysfunction in criminal law, determines that most criminalization of innocent conduct is either found in federal law or constitutes rarely enforced trivial offenses, and explains that criminal law’s substantive scope is almost surely narrower in most respects than in the past. The Article also discusses the history of legislatures repealing criminal laws and argues, based on an analysis of contemporary state legislative records, that criminal laws are not unduly easy to enact because bills proposing new crimes fail at roughly the same rate as all bills.
The Article offers some explanations for why this picture—unexpected according to prevailing scholarly accounts—is a plausible one. For example, many state legislatures’ procedural frameworks moderate the greatest risks of dysfunctional criminal policy making. A further explanation is legislatures’ roughly successful efforts to track majority preferences. Finally, the Article considers the effect of broad codes on prominent criminal justice problems, and argues, based on charging, conviction, and sentencing data, that criminal statutes that are plausible candidates for repeal (i.e., plausible examples of overcriminalization) contribute little to the biggest problems in American criminal justice.
The Supreme Court has taken very different approaches to the question of whether individuals have a right to make autonomous medical treatment choices depending on the context. For example, in cases concerning the right to choose partial-birth abortion and the right to use medical marijuana, the Court reached radically different results based on radically different reasoning. More recent developments, including the decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, this Article views all of the constitutional cases touching on medical treatment decisions as one body of doctrine.
This new perspective reveals that there are in fact two distinct lines of constitutional doctrine touching on the right to make medical treatment decisions: (1) the “public health” line of cases, which emphasize the police power of the state over individual rights, and (2) the “autonomy” line of cases, which emphasize individual bodily integrity and dignity interests. These lines of cases have developed in parallel, appearing to represent airtight doctrinal categories while in fact addressing the same fundamental question. In addition, courts have applied varying degrees of deference to legislative determinations of medical fact without any logical consistency, perhaps based on largely superficial determinations about what type of case is before them. This Article concludes that a constitutional right to protect one’s health should be consistently recognized; that the recognition of this right should not be artificially limited by excessive deference to legislative findings of medical fact; and that this right will have to be carefully balanced against the state’s real and legitimate interest in regulating the practice of medicine to protect the public.
Responses in See Also:
Book Reviews
This Review evaluates Truth, Error, and Criminal Law: An Essay in Legal Epistemology by Larry Laudan. Laudan’s book discusses the epistemology of law, focusing on proof in criminal cases, and takes the epistemology of legal proof on its own terms, exposing to philosophical scrutiny the adjudication process as a mode of inquiry with the purported goals of discovering truth and avoiding errors. In his book, Laudan largely rejects the dominant trend in evidence scholarship of relying on probability theory to interpret the strength of evidence and the various decisional standards, and contributes significantly to the epistemology of law, particularly through his analysis of standards of proof.
Further, Laudan launches a scathing attack on the current understanding of the standard of proof and also argues that many current legal rules ought to be eliminated to improve adjudicatory accuracy. This Review (1) explicates the basic concepts, distinctions, and principles that underlie Laudan’s analysis; (2) discusses Laudan’s analysis of error distribution, with emphasis on issues that include the standard of proof, the burden of proof, and the presumption of innocence; (3) comments on Laudan’s analysis of error reduction and offers some reasons to challenge his analysis with regard to error reduction; and (4) extends Laudan’s analysis with regard to standards of proof by suggesting that the problems identified with standards of proof may be alleviated by appealing to the explanatory considerations that structure and explain the nature of juridical proof.
Notes
Recently, both the attorney–client and work product privileges have come under assault by the U.S. government. After well-known corporate failures, the Department of Justice and other agencies began to pressure corporations to waive these privileges, leading to a “culture of waiver” where government agencies implicitly require corporations to waive their privileges and cooperate in investigations or make it difficult for them not to waive their privileges. This forced waiver infringes on corporations’ rights to keep information confidential under both privileges and exposes corporations to civil liability to third parties.
One solution that has been proposed is “selective waiver”—a doctrine that allows entities to provide the government privileged information but allows them to reserve the privileges as to third parties. Building on this situation, this Note provides a brief background on both the attorney–client and work product privileges; discusses the culture of waiver (especially at the Department of Justice) and its history; surveys the state of the case law in each federal circuit that has addressed the issue of selective wavier; argues that the federal courts are unlikely to provide a solution to the problem; demonstrates that selective waiver alone is not an adequate solution to the problem of forced waiver because it does not advance the purposes of either privilege; and proposes a better solution—a law that forbids government agencies from requesting privileged materials from corporations in combination with an amendment to the Federal Rules of Evidence allowing for selective waiver. The Note explains that this combination would allow corporations to reveal privileged information to the government if they choose without fear of third party opportunism while still providing the utmost protection for both privileges.
This Note provides a historical background of the courts’ treatment of student rights and expressive activity on university campuses, and explains that courts have traditionally used forum analysis (a method used by courts to determine the permissibility of state regulation of expressive activity on public property) to review university regulation of student expression.
The Note argues that forum analysis is an inappropriate framework within the institutional context; a proper framework should focus on First Amendment aims as they apply in the educational context and protect the university’s regulations that cultivate a marketplace better suited to performing an educational function. The Note suggests an alternative framework, proposing a two-part test that would allow universities to regulate student publications only if the regulations have the subjective purpose of enhancing the university marketplace of ideas and the regulations actually effectuate this purpose. The Note illustrates the proposed framework by applying it to a number of hypothetical regulations.
