Mediating Rules in Criminal Law

Article — Volume 93, Issue 5

93 Va. L. Rev. 1197
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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.

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  Volume 93 / Issue 5  

Mediating Rules in Criminal Law

By Richard A. Bierschbach and Alex Stein
93 Va. L. Rev. 1197

Extraterritorial Patent Enforcement and Multinational Patent Litigation: Proposed Guidelines for U.S. Courts

By Kendra Robins
93 Va. L. Rev. 1259

Rethinking Ableman v. Booth and States’ Rights in Wisconsin

By Jeffrey Schmitt
93 Va. L. Rev. 1315

“The Dean of Chicago’s Black Lawyers”: Earl Dickerson and Civil Rights Lawyering in the Years Before Brown

By Jay Tidmarsh & Stephen Robinson
93 Va. L. Rev. 1355