The Russian Criminal Procedure Code specifies two possible types of trial for petty violent offences. The normal procedure is referred to as private prosecution. The victim initiates the case by submitting the claim directly to the court and acts as prosecutor. The second possible trial type for the same category of offences includes preliminary investigation by the police and the participation of the public prosecutor in court hearings on behalf of the victim. In practice both procedures are used with comparable frequency. The paper utilizes this duality of procedure and employs the quasi-experimental nonequivalent control group design to compare trial outcomes in the two types of trial and examine the effects associated with the participation of the public prosecutor in court. It uses two datasets: (a) that includes information on the entire population of defendants tried for offences in question between 2009 and 2013 and (b) that resulted from the one-to-one merger of (a) with the dataset generated from court verdict texts available online. Controlling for the selection of cases into the public prosecutor track as well as for legal and extralegal characteristics of offence and offender, the analysis establishes that the participation of the public prosecutor in trials reduces the probability of acquittal and increases the probability of reconciliation of parties and case dismissal (conditional upon the admission of guilt). Another dimension of the public prosecutor effect is the mitigation of disparities in the likelihood of acquittal associated with the occupational status of defendant, save for the law enforcement employees. The latter are more likely to be acquitted than defendants with other occupational status and are less probable to reconcile with the victim.
{"title":"The Prosecutor Effects in Trials for Petty Violent Offences in Russia","authors":"V. Volkov","doi":"10.2139/ssrn.2816393","DOIUrl":"https://doi.org/10.2139/ssrn.2816393","url":null,"abstract":"The Russian Criminal Procedure Code specifies two possible types of trial for petty violent offences. The normal procedure is referred to as private prosecution. The victim initiates the case by submitting the claim directly to the court and acts as prosecutor. The second possible trial type for the same category of offences includes preliminary investigation by the police and the participation of the public prosecutor in court hearings on behalf of the victim. In practice both procedures are used with comparable frequency. The paper utilizes this duality of procedure and employs the quasi-experimental nonequivalent control group design to compare trial outcomes in the two types of trial and examine the effects associated with the participation of the public prosecutor in court. It uses two datasets: (a) that includes information on the entire population of defendants tried for offences in question between 2009 and 2013 and (b) that resulted from the one-to-one merger of (a) with the dataset generated from court verdict texts available online. Controlling for the selection of cases into the public prosecutor track as well as for legal and extralegal characteristics of offence and offender, the analysis establishes that the participation of the public prosecutor in trials reduces the probability of acquittal and increases the probability of reconciliation of parties and case dismissal (conditional upon the admission of guilt). Another dimension of the public prosecutor effect is the mitigation of disparities in the likelihood of acquittal associated with the occupational status of defendant, save for the law enforcement employees. The latter are more likely to be acquitted than defendants with other occupational status and are less probable to reconcile with the victim.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115543771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism - a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry - and pretextuality - the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear little or no relationship to case law or to statutes, and engage similarly in dishonest (and frequently meretricious) decision making, specifically where witnesses, especially expert witnesses, show a high propensity to purposely distort their testimony in order to achieve desired ends - and to show how these two factors infect all aspects of the criminal process.It further discusses how it is also necessary to understand the power of cognitive-simplifying heuristics and false “ordinary common sense” in decision making in these cases, and how defense lawyers often fall prey to the same prejudices that plague judges, prosecutors, jurors, the media and the general public. It concludes by discussing the school of thought known as therapeutic jurisprudence, and why that approach is the only way that the sanist and pretextual facade can be stripped from the criminal justice system, giving lawyers the opportunity to provide best possible representation for their clients.
{"title":"'Infinity Goes Up on Trial': Sanism, Pretextuality, and the Representation of Defendants with Mental Disabilities","authors":"M. Perlin","doi":"10.2139/SSRN.2734762","DOIUrl":"https://doi.org/10.2139/SSRN.2734762","url":null,"abstract":"This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism - a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry - and pretextuality - the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear little or no relationship to case law or to statutes, and engage similarly in dishonest (and frequently meretricious) decision making, specifically where witnesses, especially expert witnesses, show a high propensity to purposely distort their testimony in order to achieve desired ends - and to show how these two factors infect all aspects of the criminal process.It further discusses how it is also necessary to understand the power of cognitive-simplifying heuristics and false “ordinary common sense” in decision making in these cases, and how defense lawyers often fall prey to the same prejudices that plague judges, prosecutors, jurors, the media and the general public. It concludes by discussing the school of thought known as therapeutic jurisprudence, and why that approach is the only way that the sanist and pretextual facade can be stripped from the criminal justice system, giving lawyers the opportunity to provide best possible representation for their clients.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125264374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This work appraises the extent to which the provisions of the Administration of Criminal Justice Act, 2015 achieves the broad purpose of promoting efficient management of criminal justice institutions, speedy dispensation of justice, and the protection of the rights and interests of all actors in the Nigerian criminal justice system. It compares the new legislation with other legislations in the Nigerian framework for criminal justice administration, and points out the strengths and weaknesses of this new legislation over the others. Finally, it makes recommendations for a unified and more effective system of criminal justice administration in Nigeria.
{"title":"An Appraisal of the Administration of Criminal Justice Act, 2015","authors":"R. Abajuo","doi":"10.2139/SSRN.2665611","DOIUrl":"https://doi.org/10.2139/SSRN.2665611","url":null,"abstract":"This work appraises the extent to which the provisions of the Administration of Criminal Justice Act, 2015 achieves the broad purpose of promoting efficient management of criminal justice institutions, speedy dispensation of justice, and the protection of the rights and interests of all actors in the Nigerian criminal justice system. It compares the new legislation with other legislations in the Nigerian framework for criminal justice administration, and points out the strengths and weaknesses of this new legislation over the others. Finally, it makes recommendations for a unified and more effective system of criminal justice administration in Nigeria.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126506412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article begins with a discussion of the judicial debate on the confirmation procedure before the International Criminal Court, which arose in the pretrial proceedings in the Gbagbo case. The author argues that in finding that a confirmation of the charges decision should be based on ‘the strongest possible case based on a largely completed investigation’, Pre-Trial Chamber I imposed too high a standard of proof, and that adopting such standards could potentially disrupt proceedings by blurring the boundaries between pretrial and trial stages. This would ultimately be detrimental to the rights of the accused, both in terms of the right to a speedy trial and the presumption of innocence. Even if available evidence does not appear sufficient to sustain a possible conviction at trial, a case could still be worthy of trial if the PreTrial Chamber established that doubts and inconsistencies regarding the credibility of the evidence would be more properly addressed and solved through the examination of witnesses.
{"title":"Questioning the Standard of Proof: The Purpose of the ICC Confirmation of Charges Procedure","authors":"Triestino Mariniello","doi":"10.1093/JICJ/MQV035","DOIUrl":"https://doi.org/10.1093/JICJ/MQV035","url":null,"abstract":"The article begins with a discussion of the judicial debate on the confirmation procedure before the International Criminal Court, which arose in the pretrial proceedings in the Gbagbo case. The author argues that in finding that a confirmation of the charges decision should be based on ‘the strongest possible case based on a largely completed investigation’, Pre-Trial Chamber I imposed too high a standard of proof, and that adopting such standards could potentially disrupt proceedings by blurring the boundaries between pretrial and trial stages. This would ultimately be detrimental to the rights of the accused, both in terms of the right to a speedy trial and the presumption of innocence. Even if available evidence does not appear sufficient to sustain a possible conviction at trial, a case could still be worthy of trial if the PreTrial Chamber established that doubts and inconsistencies regarding the credibility of the evidence would be more properly addressed and solved through the examination of witnesses.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129688598","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-06-17DOI: 10.6084/M9.FIGSHARE.1439606.V1
W. G. Bonga, Joseph Nyamapfeni
Taxation is the commonest and oldest source of government revenue in the world. The main reason for taxation is to finance government expenses and redistribute of wealth. The shadow economy and tax evasion are both widespread in Zimbabwe. When the taxation system is not effective, many economic agents will use this opportunity to escape paying tax (which is legal) or evade tax which is illegal. When tax evasion exist, the government fails to allocate enough income for its programs, hence fails to deliver desirable social services. Noting the significant influence of tax evasion on the state, this paper pursues to determine factors that cause tax evasion and their relative impact. A questionnaire approach has been employed to collect responses. Using a logit model the results shows that income, marital status and frequency of crossing the border have positive effect on tax evasion.
{"title":"A Logit Model of Informal Traders’ Decision to Evade Tax: A Case of Zimbabwe","authors":"W. G. Bonga, Joseph Nyamapfeni","doi":"10.6084/M9.FIGSHARE.1439606.V1","DOIUrl":"https://doi.org/10.6084/M9.FIGSHARE.1439606.V1","url":null,"abstract":"Taxation is the commonest and oldest source of government revenue in the world. The main reason for taxation is to finance government expenses and redistribute of wealth. The shadow economy and tax evasion are both widespread in Zimbabwe. When the taxation system is not effective, many economic agents will use this opportunity to escape paying tax (which is legal) or evade tax which is illegal. When tax evasion exist, the government fails to allocate enough income for its programs, hence fails to deliver desirable social services. Noting the significant influence of tax evasion on the state, this paper pursues to determine factors that cause tax evasion and their relative impact. A questionnaire approach has been employed to collect responses. Using a logit model the results shows that income, marital status and frequency of crossing the border have positive effect on tax evasion.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132863159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead in the public interest? In all of these cases, and many others, parties are allowed not to disclose material information to an interested party but not to lie about the same information.This article makes the argument that in many contexts, where non-disclosure is permitted lies should also be tolerated, for otherwise the social goals sought by allowing non-disclosure are frustrated. With this as its starting point, the article develops a theory of valuable lies, discussing the conditions under which lies should be permitted. It analyzes the main impediments to allowing lies, the most important of which being the risk that permitting lies would impair truth-tellers' ability to reliably convey truthful information. The article applies the theory to various fields, including contract law, tort law, medical malpractice, criminal law and procedure, and constitutional law. It concludes by proposing changes to the law that will allow telling lies in well-defined categories of cases.
{"title":"A Welfarist Perspective on Lies","authors":"A. Porat, Omri Yadlin","doi":"10.2139/ssrn.2506309","DOIUrl":"https://doi.org/10.2139/ssrn.2506309","url":null,"abstract":"Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead in the public interest? In all of these cases, and many others, parties are allowed not to disclose material information to an interested party but not to lie about the same information.This article makes the argument that in many contexts, where non-disclosure is permitted lies should also be tolerated, for otherwise the social goals sought by allowing non-disclosure are frustrated. With this as its starting point, the article develops a theory of valuable lies, discussing the conditions under which lies should be permitted. It analyzes the main impediments to allowing lies, the most important of which being the risk that permitting lies would impair truth-tellers' ability to reliably convey truthful information. The article applies the theory to various fields, including contract law, tort law, medical malpractice, criminal law and procedure, and constitutional law. It concludes by proposing changes to the law that will allow telling lies in well-defined categories of cases.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122700345","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Litigation often pivots on the testimony of fact witnesses. Unfortunately, serving as a witness may take people away from their jobs or interrupt their lives. It is therefore understandable that fact witnesses may want to be paid for devoting time to litigation. It was once the rule that fact witness compensation was limited to statutory witness fees. That limitation rested on several factors, including the concern that greater payments could entice fact witnesses to perjure themselves, might simply influence witnesses to shape their testimony in ways favorable to the parties paying them, could price justice out of the reach of some people, and created an appearance of impropriety. On the other hand, fact witnesses may be required to devote considerable time to preparing their testimony and later testifying when called, the vast majority of witnesses faithfully honor their oaths to testify truthfully, and witnesses’ biases can be exposed on cross-examination. In any event, over time, restrictions on witness compensation have loosened. But while restrictions on compensating fact witnesses are looser than they once were, they are not lax. Lawyers and litigants may not pay fact witnesses for their testimony even if it is truthful. The general rule, in short, is that lawyers and litigants may pay witnesses for time spent testifying, preparing to testify, or assisting with the litigation, and may reimburse witnesses’ associated expenses, provided that the amounts paid are reasonable. The general rule has major exceptions, however, as where payments are contingent upon the outcome of the litigation. Furthermore, the reasonableness of payments to fact witnesses is frequently disputed, and, even if payments to fact witnesses are reasonable, additional inducements and failures to disclose compensation-related details may be disastrous. As a result of such missteps, a court may order a new trial, sanction the lawyer or party or both, or disqualify the lawyer. In addition, the lawyer may face professional discipline, and the lawyer, party, and witness all may tempt criminal prosecution. This article examines lawyers’ and litigants’ compensation of fact witnesses, with a primary focus on lawyers’ conduct. After analyzing the issues surrounding fact witness compensation, the article offers practical guidance to lawyers weighing whether and how to compensate fact witnesses.
{"title":"Compensating Fact Witnesses: The Price is Sometimes Right","authors":"D. Richmond","doi":"10.2139/ssrn.2450638","DOIUrl":"https://doi.org/10.2139/ssrn.2450638","url":null,"abstract":"Litigation often pivots on the testimony of fact witnesses. Unfortunately, serving as a witness may take people away from their jobs or interrupt their lives. It is therefore understandable that fact witnesses may want to be paid for devoting time to litigation. It was once the rule that fact witness compensation was limited to statutory witness fees. That limitation rested on several factors, including the concern that greater payments could entice fact witnesses to perjure themselves, might simply influence witnesses to shape their testimony in ways favorable to the parties paying them, could price justice out of the reach of some people, and created an appearance of impropriety. On the other hand, fact witnesses may be required to devote considerable time to preparing their testimony and later testifying when called, the vast majority of witnesses faithfully honor their oaths to testify truthfully, and witnesses’ biases can be exposed on cross-examination. In any event, over time, restrictions on witness compensation have loosened. But while restrictions on compensating fact witnesses are looser than they once were, they are not lax. Lawyers and litigants may not pay fact witnesses for their testimony even if it is truthful. The general rule, in short, is that lawyers and litigants may pay witnesses for time spent testifying, preparing to testify, or assisting with the litigation, and may reimburse witnesses’ associated expenses, provided that the amounts paid are reasonable. The general rule has major exceptions, however, as where payments are contingent upon the outcome of the litigation. Furthermore, the reasonableness of payments to fact witnesses is frequently disputed, and, even if payments to fact witnesses are reasonable, additional inducements and failures to disclose compensation-related details may be disastrous. As a result of such missteps, a court may order a new trial, sanction the lawyer or party or both, or disqualify the lawyer. In addition, the lawyer may face professional discipline, and the lawyer, party, and witness all may tempt criminal prosecution. This article examines lawyers’ and litigants’ compensation of fact witnesses, with a primary focus on lawyers’ conduct. After analyzing the issues surrounding fact witness compensation, the article offers practical guidance to lawyers weighing whether and how to compensate fact witnesses.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126108216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Throughout history, lotteries have been used in numerous legal contexts. However, legal theorists have rarely discussed the role of randomization in law, and have never done so systematically and comprehensively. Against this backdrop, the Article has three underlying goals. First, it fills the aforementioned gap by providing a theoretical framework for assessing lotteries’ role in legal resource allocation. It innovatively integrates fairness and efficiency concerns, critically evaluating and applying insights from various disciplines, including economics, philosophy, political science, psychology, and theology. This multidisciplinary framework — of unprecedented breadth and complexity — provides lawyers and policymakers with a powerful analytical tool for assessing the possible use of random allocation schemes. Second, the Article recognizes the importance and highlights the pervasiveness of lotteries in law. It does so by analyzing and appraising the historical and present role of lotteries in numerous legal contexts through the theoretical prism. It also advocates a cautious expansion of the use of lotteries in other contexts, a notion that runs counter to the basic intuition that the law must be committed to reason and certainty. Third, the Article substantiates a jurisprudentially provocative thesis: While random-based schemes can be and are employed in many settings, there is no consistent set of justifications for all applications. The rationalization is highly varied and context-specific.To construct and apply the theoretical framework, the Article uses the fundamental distinction between fairness and efficiency as a cornerstone. Part I unveils the fairness of random selection as a matter of common perceptions and normative commitments. It starts by showing that lotteries are often perceived as fair allocation methods, especially compared to the alternatives (“positive fairness”). Part I then examines whether the use of lotteries can be justified on the ground of fairness (“normative fairness”). It discusses the outmoded theological justification which associates random selection with divine intervention, the egalitarian argument and its limits, the fairness-related advantages and disadvantages of processual detachment from human agency, and fairness vis-a-vis people who do not take part in the primary allocation, be they allocation candidates or allocators.Part II addresses the advantages and possible drawbacks of random selection in terms of efficiency, compared to conventional alternatives: auctions, need- and merit-based allocations, and queues. It first examines recipients’ ability, ex post, to maximize the utility of the allocated resource, as well as ex post psychological effects of the allocation method. This Part then analyzes ex ante changes in potential recipients’ behavior created by random allocations, also noting the outcomes of the so called “insulation” from power-structures facilitated by random processes. Next, Part II
{"title":"'May the Odds Be Ever in Your Favor': Lotteries in Law","authors":"R. Perry, Tal Z. Zarsky","doi":"10.2139/ssrn.2494550","DOIUrl":"https://doi.org/10.2139/ssrn.2494550","url":null,"abstract":"Throughout history, lotteries have been used in numerous legal contexts. However, legal theorists have rarely discussed the role of randomization in law, and have never done so systematically and comprehensively. Against this backdrop, the Article has three underlying goals. First, it fills the aforementioned gap by providing a theoretical framework for assessing lotteries’ role in legal resource allocation. It innovatively integrates fairness and efficiency concerns, critically evaluating and applying insights from various disciplines, including economics, philosophy, political science, psychology, and theology. This multidisciplinary framework — of unprecedented breadth and complexity — provides lawyers and policymakers with a powerful analytical tool for assessing the possible use of random allocation schemes. Second, the Article recognizes the importance and highlights the pervasiveness of lotteries in law. It does so by analyzing and appraising the historical and present role of lotteries in numerous legal contexts through the theoretical prism. It also advocates a cautious expansion of the use of lotteries in other contexts, a notion that runs counter to the basic intuition that the law must be committed to reason and certainty. Third, the Article substantiates a jurisprudentially provocative thesis: While random-based schemes can be and are employed in many settings, there is no consistent set of justifications for all applications. The rationalization is highly varied and context-specific.To construct and apply the theoretical framework, the Article uses the fundamental distinction between fairness and efficiency as a cornerstone. Part I unveils the fairness of random selection as a matter of common perceptions and normative commitments. It starts by showing that lotteries are often perceived as fair allocation methods, especially compared to the alternatives (“positive fairness”). Part I then examines whether the use of lotteries can be justified on the ground of fairness (“normative fairness”). It discusses the outmoded theological justification which associates random selection with divine intervention, the egalitarian argument and its limits, the fairness-related advantages and disadvantages of processual detachment from human agency, and fairness vis-a-vis people who do not take part in the primary allocation, be they allocation candidates or allocators.Part II addresses the advantages and possible drawbacks of random selection in terms of efficiency, compared to conventional alternatives: auctions, need- and merit-based allocations, and queues. It first examines recipients’ ability, ex post, to maximize the utility of the allocated resource, as well as ex post psychological effects of the allocation method. This Part then analyzes ex ante changes in potential recipients’ behavior created by random allocations, also noting the outcomes of the so called “insulation” from power-structures facilitated by random processes. Next, Part II ","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116983847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On November 14, 2013, Professor Dervan was called to testify before the United States House of Representatives' Committee on the Judiciary Over-Criminalization Task Force. Available here is his written testimony. In his written testimony, Professor Dervan examines the phenomenon of over-criminalization, particularly in the regulatory area, and offers several recommended solutions for Congressional adoption. First, he recommends the adoption of a default rule for mens rea. Second, he recommends the adoption of a default rule applying mens rea to all material elements of an offense. Third, he recommends the codification of the Rule of Lenity. Finally, along with some additional recommendations for consideration, Professor Dervan discusses the role of plea bargaining in the U.S. criminal justice system and encourages the Task Force to more closely examine this issue in the future.
{"title":"Regulatory Crime: Solutions","authors":"Lucian E. Dervan","doi":"10.2139/SSRN.2459631","DOIUrl":"https://doi.org/10.2139/SSRN.2459631","url":null,"abstract":"On November 14, 2013, Professor Dervan was called to testify before the United States House of Representatives' Committee on the Judiciary Over-Criminalization Task Force. Available here is his written testimony. In his written testimony, Professor Dervan examines the phenomenon of over-criminalization, particularly in the regulatory area, and offers several recommended solutions for Congressional adoption. First, he recommends the adoption of a default rule for mens rea. Second, he recommends the adoption of a default rule applying mens rea to all material elements of an offense. Third, he recommends the codification of the Rule of Lenity. Finally, along with some additional recommendations for consideration, Professor Dervan discusses the role of plea bargaining in the U.S. criminal justice system and encourages the Task Force to more closely examine this issue in the future.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122813383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Historically, guilty pleas have always been considered a way of rationalising criminal procedures. Recent budget cuts have pushed the Crown Prosecution Service to find new solutions to save money. Two main saving measures could potentially affect plea bargaining in practice: maximising the use of paralegal staff and the Early Guilty Plea Scheme. Based on empirical observations and interviews, this paper examines the practical and theoretical consequences of these money-saving measures on plea bargaining.
{"title":"Plea Bargaining in a Context of Budget Cuts: The Example of England and Wales","authors":"Laurène Soubise","doi":"10.2139/ssrn.2324723","DOIUrl":"https://doi.org/10.2139/ssrn.2324723","url":null,"abstract":"Historically, guilty pleas have always been considered a way of rationalising criminal procedures. Recent budget cuts have pushed the Crown Prosecution Service to find new solutions to save money. Two main saving measures could potentially affect plea bargaining in practice: maximising the use of paralegal staff and the Early Guilty Plea Scheme. Based on empirical observations and interviews, this paper examines the practical and theoretical consequences of these money-saving measures on plea bargaining.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114493975","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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