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Purposes and Effects in Criminal Law

In their provocative Article “Mediating Rules in Criminal Law,” Professors Richard Bierschbach and Alex Stein tell us that rules of criminal liability and rules of evidence, often pushing in opposing directions, collectively determine the quantum and mix of deterrence and retribution that a given punishment practice delivers. An example could be the excuse defense of duress. This doctrine is designed to prevent punishment of some actors who are not morally at fault for their behavior (or at least comparatively less at fault than others) because forces not of their own making (and about which we have some sympathy) drive them to commit socially harmful acts. The doctrine might undermine deterrence by granting actors permission, past a point, to abandon efforts to resist offending. However, the evidentiary rule in most jurisdictions that requires the defendant to carry the burden of proving an excuse defense tilts matters somewhat back towards deterrence. Making the defendant prove duress filters out many of the weaker (and even fabricated) duress claims, which might arise in cases in which a defendant was perfectly capable of resisting pressure to violate. Bierschbach and Stein urge us to analyze many areas of criminal law doctrine with this methodology.

Their effort is an intriguing forward move in criminal law scholarship that seeks to remove barriers—perhaps of use to lawyers and law teachers—that have impeded full understanding of the system of social regulation and practices that produces punishment. In a variety of styles and methodologies, scholars have been opening our eyes to how classification-driven distinctions between substantive criminal law and criminal procedure, liability rules and evidentiary rules, law and social norms, and law and politics block us from clearly viewing the social practice of punishment.

As I worked with Bierschbach and Stein’s methodology, however, I became convinced that it is flawed. The approach requires us to force components of doctrine onto the authors’ deterrence-retribution ledger, yet, we can see as we are doing this that many of those components do not belong there. By the time we are done, we cannot escape the conclusion that the ledger itself is too wooden and simple to account accurately for the theoretical structure of a given locus of criminal law doctrines.

The Multifarious Politics of Capital Punishment: A Response to Smith

Steve Smith’s insightful account of the “politics of death” is organized into three broad points. First, he notes that the Supreme Court, in trying to regulate (and, briefly, to abolish) the death penalty, perversely reignited a pro-capital punishment politics that had been on the wane through the 1960s. Second, he describes how the political process—at least, since the 1970s—has made moderation on the death penalty infeasible, so that capital punishment policy grows ever harsher but rarely more moderate or restricted. Finally, he describes the Court’s new approach to capital punishment regulation. Instead of tinkering with mechanisms to guide jury and judge discretion in death sentencing and thereby bring some distributive justice to capital punishment implementation, the Court has turned to a two-pronged approach: restricting death eligibility under the Cruel and Unusual Punishment Clause and revitalizing capital defense representation under the Sixth Amendment counsel doctrine inaugurated in Strickland v. Washington.

The Market for Union Services: Reframing the Debate

What is union representation? Is it a banding together of employees for mutual aid and protection? Or is it the decision by a group of employees to contract with a provider of negotiation services? And what, then, is the union representation election? A laboratory experiment, a rough-and-tumble election, or something else entirely?

At the center of my article, Information and the Market for Union Representation, is a new conception of the union representation election. My many thanks to Catherine Fisk, Harry Hutchison, and Jeff Hirsch for their thoughtful and thought-provoking essays in response to the article. This Essay is a brief reply to their efforts, in hopes that it is just the beginning of a much more extended conversation about the way we conceive of and regulate union representation.

Traditionally, labor law has characterized the election as a laboratory in which the “uninhibited desires” of employees can be distilled or as a political campaign in which two sides vie for victory. These metaphors, however, are more misleading than instructive. Instead of the enforced sterility of the laboratory or the competitive hurly-burly of an election, a better approach is to see the election as a decision whether or not to purchase union representation services. Because the union is selling a collective good, an election provides a means for determining the wishes of the majority. But framing the decision as an election does not change the underlying dynamic—namely, employees are deciding whether or not to pay a particular union to represent them in collective bargaining.

Although the commentators all have different responses to this “purchase-of-services” paradigm, none of them argue that the laboratory conditions model or the political campaign model should remain ensconced as the appropriate framework. Moreover, all three seem to agree on the importance of the information to the representation election process. However, they diverge in their concerns about the policy implication of this new approach. Because the article focused on establishing both the new approach and the information deficiencies that the new approach illuminates, I did not spend much time on the policy implications. But since the commentators have brought up a number of fascinating possibilities, I would like to devote the substance of this brief Essay to the policy implications they raise.

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