Criminal Law’s “Mediating Rules”: Balancing, Harmonization, or Accident?

Volume 93

93 Va. L. Rev. Online 199
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Before offering a few thoughts about Professors Richard Bierschbach and Alex Stein’s “Mediating Rules in Criminal Law,” I would like to highlight just two of the several significant contributions it makes to the criminal law literature. First, it both spotlights and combats the tendency of theoretical work in criminal law, particularly work in the retributivist camp, to focus on certain criminal justice issues at the expense of others. Such work typically orients itself toward (admittedly crucial) questions about the proper justification, scope, and amount of punishment in the abstract, while giving significantly less consideration to the various institutional and procedural aspects of any concrete system of imposing such punishment. Even if the substantive punishment rules were perfect, their implementation in any real world scheme would involve compromises, if not outright distortions. Too little attention is paid to the translation of principle into practice, and Bierschbach and Stein’s article is a welcome effort to bridge that gap.

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