Issues

For more than a century, one of the pillars upon which the law of evidence was thought to rest is that the primary (although by no means exclusive) objective of the law of evidence is to further accurate fact-finding by maximizing the rationality of the evidentiary process. The crux of this pillar is that the law of evidence increases rationality (and thereby increases accuracy) through admissibility rules that (1) require reliable evidence, and (2) behave paternalistically toward jurors and their cognitive abilities. This Article aims to supplant this pillar by showing that the law of evidence pursues minimal, not maximal, rationality, and leaves it to the adversarial process to produce accurate (or inaccurate) results. Our primary aim is to describe the law of evidence and the rationality norm that best explains the evidentiary proof process. Although we largely put aside normative debates about whether the law of evidence should be constructed differently, our analysis generates normative implications. First, it generates implications for evidence scholarship, both positive and normative, that mismodels or misdescribes the law of evidence as pursuing maximal rationality (or other strong conceptions of rationality). Second, because the adversarial process—rather than the law of evidence—is primarily responsible for furthering accurate fact-finding, our analysis provides further support for increasing access to evidence and resources for criminal defendants. The various mechanisms and procedural devices that are designed to protect criminal defendants from wrongful convictions—the burden of persuasion, the right to counsel, and confrontation and compulsory process rights, for example—only work effectively with access to information. This Article, while primarily contributing to the ongoing reconceptualization of the field of evidence, has potentially radical implications for the criminal process.

Scholars have written much about Supreme Court Justice Ruth Bader Ginsburg’s legacy in many areas of law, but her criminal justice legacy has yet to be fully articulated, likely because she penned few important opinions in this field. This article argues that Justice Ginsburg had an enormous impact across a large area of criminal justice cases decided by the slimmest majority. We explore these close cases and, in so doing, we show her to have played a crucial role in a remarkable number of landmark cases that extended important constitutional protections to criminal defendants. Specifically, she joined the majorities in important decisions extending the rights to a jury trial, to an impartial tribunal, and to counsel. She also voted to shield juveniles and people with mental impairments from excessive punishments and to extend protections to property owners who faced civil penalties due to criminal wrongdoing. As our review aptly shows, Justice Ginsburg’s work in criminal justice lived up to the ideals of the Torah passage that she displayed behind her office chair as a Justice, which read “Justice, justice shalt thou pursue . . . ” Rabbinic scholars interpret the passage as a command for judges to provide meaningful hearings for those who seek justice, that judges should act with impartiality toward all who come before them, and should temper strict justice with mercy. She likely pursued these principles in other areas of law as well—the commands for meaningful and impartial justice do not apply exclusively to criminal judges. Nonetheless, the principles arguably apply more poignantly in the criminal justice area which, unlike other areas of law, strives to provide heightened constitutional safeguards while also permitting severe punishments. Our review of her five-vote majority criminal justice jurisprudence also reveals three interesting facts. First, she is counted in a surprisingly high number of five-vote majorities in criminal justice cases during her tenure on the Court. Second, we found a remarkable number of landmark criminal decisions in which she cast a vote in a five-vote majority. While her votes do not make her a “swing vote” in the sense of being the median justice who swayed the majority, her decisions nonetheless made the outcomes in these close cases possible. The fact that so many landmark cases are five-vote majority cases also means they may be most vulnerable to reconsideration in the future. Third, Justice Ginsburg, considered by most as part of the progressive wing of the Court, did most often side with the defendants in the criminal justice area, but not always. Notably, the few majority or concurring opinions she produced in these cases tend to be those in which she sided with the government. She would have been assigned to write the majority opinions, but the concurring opinions she likely chose to write to explain votes that some may have thought out of step with her usual positions reading constitutional rules more expansively. Thus, the novel empirical approach presented in this Article enables us to appreciate Justice Ginsburg’s true criminal justice legacy of providing meaningful procedural protections to criminal defendants, including the right to counsel, to a jury trial, and the right to an impartial tribunal, as well as protecting children, people with mental impairments and property owners from excessive punishment. By exploring these themes in her critical five-vote majority jurisprudence, the Article sheds new light on the justice ideals of this iconic jurist and shows her to have lived up to the Torah command to pursue justice.

As progressive efforts to reform the U.S. criminal legal system continue to take form, one category of crime has been consistently overlooked: sex offenses. While the carceral system is often condemned for its excessive punitiveness, severe punishments for sex offenders remain largely unchallenged and even popular. A primary example of these punishments is sex offender registration and notification (SORN) laws, which significantly constrain the lives of sex offenders after they have served their time in prison. Though subject to decades of empirical criticism from scholars, much of which has found that SORN laws have no significant impact on sex offender recidivism, these laws have remained a fixture of the American legal system since their nationwide introduction in the 1990s. This note seeks to understand the persistence of the SORN framework and ultimately argues that progressive prosecutors, through a rich normative model of prosecution, should target the SORN framework as an area ripe for reform.

The future of the nondelegation doctrine is clouded with uncertainty. Despite the Supreme Court’s insistence that the nondelegation doctrine is an axiom of constitutional law, the doctrine remains an illusory constraint on Congress. Indeed, almost a century has passed since the Court invalidated a congressional delegation under the nondelegation doctrine. But several Justices appear eager—or at least willing—to revive the nondelegation doctrine. This Comment charts an originalist path forward. It primarily argues that the original meaning of legislative power restrains Congress from delegating legislative authority to write criminal law. The constitutional enactors believed that core private rights—to life, liberty, and property— required greater statutory specificity to regulate than public rights. Private rights thus restrain Congress from delegating carte blanche authority to agencies to criminalize conduct because the statute authorizing such a delegation will necessarily lack specificity. A criminal statute cannot concomitantly entail statutory specificity and delegate necessary details— such as the actus reus—to the Executive Branch. Unsurprisingly, the Founding Era historical record reflects a dearth of legislative delegations to write criminal law. This lack of evidence is expected. Administrative crimes would have enabled the Executive Branch to unilaterally regulate the core private right to liberty, and often the private right to life, given the proportion of federal offenses that were capital offenses. Nevertheless, the absence of criminal law delegations need not present dispositive evidence that a categorical prohibition on such delegations existed. However, if a compelling originalist argument exists for the nondelegation doctrine, it must account for the private/public rights distinction that permeated Founding Era legal practices. The contemporary practice of administrative crimes departs from the original meaning of legislative power. Congress increasingly delegates legislative authority to administrative agencies to determine whether and how particular statutes will create federal offenses. Most—if not all— delegations that enable administrative agencies to unilaterally create administrative crimes will lack statutory specificity. This practice conflicts with the originalist private/public rights taxonomy. But it also remains in tension with fundamental principles of Anglo-American criminal jurisprudence—including nullum crimen sine lege, the rule of lenity, the void-for-vagueness doctrine, and the prohibition on federal criminal common law.