This article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law’s deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law’s dominant animating theories – deterrence and retributivism – respond asymmetrically to the workings of those rules. We analyze the features of “mediating rules,” explore their effects across a range of substantive areas, and offer a tentative normative assessment of their role in the criminal law system.
Article
Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty
Direct relations between the federal government and local governments—what this article calls “cooperative localism”—play a significant and underappreciated role in areas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social services, immigration, and environmental protection. Despite the ubiquity of this practice, a jurisprudential conflict threatens this important facet of intergovernmental relations. Historically, courts have allowed local governments to invoke federal authority as a source of local autonomy, despite the prevailing view of local governments as powerless instrumentalities of the state. The Supreme Court is increasingly suggesting, however, that state control over local governments is a fundamental aspect of state sovereignty triggering judicial limits on federal power. When this confrontation comes to a head, limiting federal authority to empower local governments would be a mistake. This article instead proposes a new framework for conceptualizing federal empowerment of local governments that is not only consistent with the Court’s contemporary view of federal structure, but in fact advances the Court’s normative and pragmatic goals. The core concerns animating the Court’s current move to devolve and decentralize power are forcefully served by enhancing the autonomy of local governments in the constitutional structure. In short, the very values of federalism on which the Court has relied to enhance state sovereignty provide a compelling localist grounding for the particular exercise of national power represented by cooperative localism.
Structural Reform Prosecution
In what I call a structural reform prosecution, prosecutors secure the cooperation of an organization in adopting internal reforms. No scholars have considered the problem of prosecutors seeking structural reform remedies, perhaps because until recently organizational prosecutions were themselves infrequent. In the past few years, however, federal prosecutors have adopted a bold new prosecutorial strategy under which dozens of leading corporations have entered into demanding settlements, including AIG, American Online, Bristol-Myers Squibb Co., Computer Associates, HealthSouth, KPMG, MCI, Merrill Lynch & Co., and Monsanto. To situate the DOJ’s latest strategy, I frame alternatives to the pursuit of structural reform remedies as well as five alternative ways prosecutors can pursue structural reform. To better understand what the DOJ accomplished by choosing to pursue structural reform and then doing so at the charging stage, I conducted an empirical study of the terms in all agreements the DOJ has negotiated to date. My study reveals imposition of deep governance reforms, consistent with the purposes of the Sentencing Guidelines, but also perceived prosecutorial abuses and some indications of overreaching. I conclude that given the breadth of prosecutorial discretion and the deferential, limited nature of judicial review, the guidance that the DOJ provides will chiefly define the future development of its emerging structural regime for deterring organizational crime.