Blockchain Papers

James Darrell Duffie, Odunayo Olowookere, Andreas Veneris

No abstract is available for this record.

Marek Prengel

Jak dowodzą powyższe rozważania prawnoporównawcze, art. 45 § 2-3 p.k.k. ma być nieznanym jak dotąd, ani w systemie Common law, ani tym bardziej w systemie Statute law, uregulowaniem w zakresie tzw. odwrócenia ciężaru dowodu w przedmiocie odebrania mienia przestępcy. Co więcej, owe przepisy stawiają pod znakiem zapytania istnienie niektórych uniwersalnych wartości, do których z pewnością należy m.in. zasada domniemania niewinności wyrażona w art. 6 ust. 2 EKPC. Niemiecka koncepcja, choć jest niewątpliwie najbardziej zgodna z podstawowymi zasadami prawa w porównaniu z przedstawionymi rozwiązaniami, to raczej nie jest adekwatna do nowych wyzwań walki z przestępczością w dobie globalizacji. Szwajcarskie i austriackie rozwiązanie idzie dalej. Chodzi tu o art. 53 cyf. 3 s.k.k. oraz § 20b ust. 1 a.k.k. Mimo wszystko napotyka poważne trudności ustalenie, Że dane mienie jest w ,,dyspozycji" organizacji przestępczych. Nawet amerykańska koncepcja criminal for feiture, która opowiada się za pewnym ułatwieniem dowodowym w 21 U.S.C. § 853(d), nie przewiduje tzw. odwrócenia ciężaru dowodu w zakresie omawianej problematyki. Art. 5 ust. 7 Konwencji Wiedeńskiej, podobnie jak art. 12 ust. 7 konwencji z 2000 r., przewiduje możliwość tzw. odwrócenia ciężaru dowodu w przedmiocie przepadku mienia. Należy jednak zauważyć, iż owe postanowienia umów międzynarodowych z jednej strony wiążą strony jedynie względnie, tj. dają pewną możliwość, natomiast nie rodzą żadnego obowiązku. z drugiej strony wymagają zaś uwzględnienia podstaw porządków prawnych stron konwencji. Nie wydaje się, by odegrały one większą rolę zarówno w systemie common law, jak i w systemie statute law. O ile w pierwszym systemie prawa poruszana problematyka zakorzeniła się na stałe dużo wcześniej wyłącznie w civil law, o tyle w drugim _ jest ona w swojej czystej formie nie do przyjęcia. As evidenced by the above comparative legal considerations, Article 45 § 2-3 of the Polish Penal Code is intended to be a hitherto unknown, neither in the Common Law system nor even less in the Statute law system, regulation of the so-called reversal of the burden of proof on the subject of the seizure of the offender's property. Moreover, these provisions call into question the existence of certain universal values, which certainly include the principle of the presumption of innocence as expressed in Article 6(2) of the European Convention on Human Rights. The German concept, while undoubtedly the most in line with the basic principles of law compared to the solutions presented, is unlikely to be adequate for the new challenges of fighting crime in the age of globalisation. The Swiss and Austrian solution goes further. This is about Article 53 (3) of the Swiss Penal Code and Article 20b(1) of the Austrian Penal Code Nevertheless, it is very difficult to establish that the property in question is at the “disposal” of criminal organisations. Even the US concept of criminal forfeiture, which advocates some evidentiary relief in 21 U.S.C. § 853(d), does not provide for the so-called reversal of the burden of proof with regard to the issue at stake. Article 5(7) of the Vienna Convention, like Article 12(7) of the 2000 Convention, provides for the possibility of a so-called reversal of the burden of proof on the subject of asset forfeiture. However, it should be noted that these provisions of international agreements, on the one hand, bind the parties only relatively, i.e. they provide a certain possibility, but do not create any obligation. On the other hand, they require that the basis of the legal orders of the parties to the convention be taken into account. They do not appear to have played a major role in either the common law or the statute law systems. While in the first system of law the issue raised took permanent root much earlier in civil law alone, in the second it is unacceptable in its pure form.

Vasyl Kozii

.., ..

Christopher Alan Lewis, Adaner Usmani

Since 2014, viral images of Black people being killed at the hands of the police—Michael Brown, Eric Garner, Breonna Taylor, and many, many others—have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States.2 Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives.3 And others have called for abolishing the police altogether.4 It has become common knowledge that the police do not solve serious crime, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans—especially poor, Black people. This is the so-called paradox of under-protection and over-policing that has characterized American law enforcement since emancipation.5The American criminal legal system is unjust and inefficient. But, as we argue in this essay, over-policing is not the problem. In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations. In this country, roughly three people are incarcerated per police officer employed. The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate. We argue that the United States has it backward. Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world. We call this the “First World Balance.”We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration. This essay offers a preliminary sketch of some of the arguments in the book. In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor. One of us is a social scientist, and the other is a philosopher and legal scholar. Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct—but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system. Even if our answers prove unsound, we hope that the combination of empirical social science and analytic moral and political philosophy we contribute can help illuminate what alternative answers to those questions might have to look like to be sound. In fact, because much of this essay (and the underlying book project) strikes a pessimistic tone, we would be quite happy to be wrong about much of what we argue here.In the first part of this essay, we outline five comparative facts that contradict much of the prevailing way of thinking about what is distinctive about the American criminal legal system. In the second part, we draw out the normative implications of those facts and make the case for the First World Balance.In one sense, prisons and police are complements. It would be impossible to have many people in prison without the police, since, to put people in prison, the police usually have to apprehend and arrest them first. It would also be difficult to have police without prisons, since the threat of imprisonment is one of the typical sanctions wielded by police around the world. Given this, and given the exceptionally high incarceration rate in the United States, many people assume that the United States must also have an exceptionally high number of police officers.But that is not in fact the case. Figure 1 plots the police and incarceration rates of a sample of developed countries.6 The graph illustrates the chief fact that has animated the iterature on mass incarceration: America is a developed-world outlier in its use of incarceration. Yet it also illustrates the much less-well-known fact that America is not at all an outlier in its rate of policing. The United States has around 212 police officers for every 100,000 total residents, which ranks it in the forty-first percentile of today’s developed world.Yet this way of putting things in fact understates the magnitude of what has been misunderstood. Figure 1 denominates the scope of incarceration and policing by population. By that metric, the United States has an exceptionally high incarceration rate but a relatively normal number of police officers given the total size of its population. But we think it is more informative to denominate punishment and policing by the level of serious crime in a country. By doing so, it is possible to make inferences about cross-national differences in how countries manage serious crime.Here one runs into some difficulties. For several reasons, it is challenging to compare levels of serious crime across countries. Some countries criminalize acts that are perfectly legal in others. Countries define many criminal acts, such as “assault,” differently from one another.7 And countries vary widely in their ability to measure the incidence of criminal acts. The result is that many international patterns in reported data are obviously misleading. Data collected by the United Nations Office on Drug and Crime, for instance, suggest that the rate of violent crime is higher in Belgium, France, and Canada than in El Salvador, Russia, or Rwanda.8 Our solution to this problem is to measure the rate of serious crime by the rate of homicides.For the comparisons that anchor this piece—the United States to the developed world—this immediately raises a problem. Franklin Zimring and Gordon Hawkins have argued that “[r]ates of crime are not greatly different in the United States from those in other developed nations. … [O]ur extremely high rates of lethal violence are a … a distinct social problem.”9 If America has more lethal violence than Europe, but not more crime, the relatively high homicide rate in the United States would be a biased estimate of the rate of serious crime.We have two kinds of reasons for thinking that this is wrong and that the homicide rate is the right (or best) measure. First, given the reliability issues that bedevil the police or victim survey data on which Zimring and Hawkins and others rely, this is an area in which one has to take some cues from theory and other data. Consider, then, the following trilemma.Concentrated disadvantage is the root cause of most serious crime in developed societies.America has significantly more concentrated disadvantage than European countries.America has the same amount of serious crime as other developed countries.One of these three statements must be false. Criminological theory and existing social science evidence strongly support (1).10 And we think there is good evidence to support (2).11 The main theoretical reason to believe (3) is that the United States has far more guns per capita than European countries. But while firearm availability no doubt has some impact on the level of violence, we think the is to be would be difficult to with other patterns across and Consider, for that while the United States has times as many guns as El Salvador, the homicide rate there is roughly times higher than it is And that in the United States are much more to a than Given this and given the reasons to believe and we think (3) is most to be the of this second not on the that homicide for a of the total by as of the crime rate to by the state, they are with a petty and one murder has much serious crime than a with a and one petty the crime rate would be the same in measure has to for the or of is difficult to measure how different kinds of crime are with but the a first estimate the social of different kinds of crime by people how much they would be to to their of being a victim of this and that the of a murder is around the of an than the of a around and the of around homicide is much than other it is much more that it for about of the total of This that it is a much estimate of the rate of serious than of the rate of Figure the same but this by homicide rather than by immediately level of incarceration relatively is a higher than the developed-world but not by is the fact that its if by the level of serious crime, America is not but rather America has about the number of police per than the developed of the of police has been that American police are inefficient. people argue that American Black been and they by this that the of American police are focus too much on petty and too on serious This is the of for on the fact that of a typical police is to violent it is that in comparative the police in the United States do not solve many serious rate is the of all as Figure The developed around one arrest per homicide that In the United States, the is this not to as because police in the United States are exceptionally on one measure of police the number of homicide per police The rate is the of police focus and the police The of policing in the United States that the problem with rate is that is but focus is In fact, as Figure the is is but focus is way of much of what we have far is to that the United States to the of punishment the of The high and the level of police per homicide suggest that the United States on long rather than the of arrest to One way to estimate and more is to the into the of to homicide and the of to Figure plots these two across the developed world. The result our the United States has relatively levels of but relatively high levels of of and to measure these two is that we can about how and are the United Figure also while all from an exceptional balance of and it is Black people in the United States are especially to police killed around people in In the rest of the developed the number of police is around per the is It that to the level of police violence, we must the of the Yet comparisons suggest the opposite Figure there is a and cross-national between the rate at which police and the number of police officers per with of police per homicide are countries in which police are much to as compared to countries with police per The countries of the developed world on the right of this graph levels of police while the countries of the world the The is the United be a is not that levels of cause the police to be more possible might the of high levels of police and homicide It is that the in the levels of police cause public demand for police is and our data are poor, is there are some theoretical reasons to believe that this is in fact violence police police make with a of those these the treatment of a of have a the American combination of police and is of the the of and the of the is but of can be the most way to with the in police to with rates of violence and are more to police officers are more to out of for their such as this since, such a there are for to take to and on and rather than to crime make the of policing more And this might in make with the police more these inferences are empirical research is to But we think the cross-national between police and the number of police officers per with the theoretical reasons to believe those might be as a It is not at all that the number of police officers on the would the of police violence and And it to that the to police argue that police officers be as rather than But the that and the be of United States is with much more serious crime than other It to this exceptionally high level of serious crime with an exceptional combination of relatively police and long this its in the way it most people. is to be comparative we have suggest an the United States, like the rest of the developed to policing and penal rather than incarceration and penal the United States to from incarceration to policing the balance between the two more like the balance in the rest of the developed world. The implications of such a we call the First World be The United States has three times as many as police If it no but the by prison to police officers the the same as the in the developed world times as many police officers as the United States would have about and police the First World if in the United States, would be a with about and half a more police we this United States would not be a police to the First World would in fact the rate of policing in the United States with the rest of the developed of to that to the First World would the United States with other countries is not to have that this would be a good One reason to normative from comparative empirical make these one has to fact to the First World be our it be to three about our it to our in questions like this one that the two of us to about questions but are to from the normative implications of their It is no that many of them do since it is those implications that their But social of in moral and political philosophy that these are too on or rather than normative Some are in moral and political theory to that on But a of social many of them to answers to these questions (or of those that do not empirical our is to empirical evidence and social theory with explicit normative we to be as as In we do not to the theory of or political (or the theory of out the implications of that we the implications of a of In we that do not have implications for which that our hands about these issues not be the it We think that the combination of empirical and normative one would have to to our are of that our case for the First World be as our to a about how the United States to a of penal readers we the in our by the this a of And a between prisons and police, kinds of social or are to We more about we the in this way in our forthcoming book What’s Wrong with Mass but some is in think that in the long a of social would crime by its root and in the and demand for policing and In other we argue that of or efficiency that the United States social But a of social from to of this magnitude would the to some kind of the Given the of the American movement and the of the American we doubt we like this Our in this essay is to about what be in the world in which we in the world in which we would like to about that we to that are prisons and the the existing of from prisons and police to social as many have we argue in What’s Wrong with Mass this is because social is by what we call the the root of crime would be to the for the most people in do this by social would since the of are not most people. penal is in a way that social is it about a to the developed most penal but like to its most there is good evidence that social that are at the and be at But the same that these social also it for to them at The more the the more we can be that these the of the and the social is but for crime while social can be but is it is not to the root of crime with to public Yet some might argue that we from policing and incarceration if this would result in more policing and concentrated imprisonment and on rather than on incarceration in can social in and political and can and And arrest can be a disadvantage in the and the fact that many of those are have their are all by the the with the many of incarceration and policing to a in crime is serious crime has those same crime can social and and concentrated disadvantage at the in a violent to do things that are for social and violence can be and of and and are of in crime is without to and for public and other of which the and of disadvantage in those And as a criminal or an arrest can be a on the of crime can be in extremely can become a that serious crime the same kinds of as policing and concentrated we argue that and an and between the of crime, and policing. The have to the of these no how and to make The fact that of this are is an It is an of our But we think some of these are more and more than we think that the us is how to strike the right penal to be about the level of incarceration and the level of policing in today’s United in the in Figure the United States how a might this that the how to strike the balance between incarceration and policing by that in this that we different of the balance between policing and incarceration to in the what we take to be the of to in this what it would for the level of homicide and crime, the number of people in prison, and the number of people killed and by the would to of these if the United States to the First World homicide and other kinds of serious crime would The empirical on is that the size of police is a much more way to crime than the of prison for those are and The for this is in and do not make the way than the of the they are people to the of their much more than in the It is by possible to to the of a prison on the in the it is to be that the of arrest and would do more to crime than in the United States, a on policing is times more at crime than a on Our is that the First World would be a world of a more than (and crime more the to by mass incarceration would be its prison is extremely to the of It is difficult to put a number on this But one that a in prison is as good as a this a of two in the prison would be the of one of a of about The the rate if for a in prison of the of for a prison, rather than the the of the of policing. the one a world of more policing be a world of more on by our is that the First World would be a world of more the other for the reasons we we that a world of more policing would be one of police violence people killed by the have to some way to these against This is not but one to do the against the For the to be reason to against our on the of these to must the of the of crime and incarceration (and police We think this is on fact, the of arrest are than one of the of the First World in for instance, that the arrest is about as as three in do not this this the argumentative against our this in a is the of roughly This is not five of the of if we to at the rate given these would be the of about five than the we estimate would be by the in might that the and social of these would the of the in serious crime we think the First World would Yet those make this would have to reasons to think that these the and social of we have argued it to out the of one of these to the of the others. crime, and concentrated incarceration to all have the same kinds of from a we think that the First World is In What’s Wrong with Mass we the of our to a of alternative The that a different an about the of police on crime that is out of with the empirical argue that public not to it must also be to how the and of in and the criminal legal system in are Consider, for what the people more the these people of the (or is that people the those people of how to strike the balance between policing and how they to do be by the of crime, of police and and those all to be from the ranks of the are Black and are most to be of the kinds of the same people are most to be or killed by the And they are also those are at the of in these are not Figure Black people are more murder the and those for serious than they are in the ranks of those have been for petty or killed by the police in given In fact, Black people to be those been in their are far more in the incarcerated than they are those have been in their make of the but of the (and of the total support to the case for the First World The of the which the United States on long prison to more on Black people and the poor, and especially the Black poor, than do the to the First World would not to the with the penal system but also to the it would the number of of crime and those for serious offenses, and those killed by the police, it would also the from a more to the can the for the First World as people the those people of incarceration and homicide are more by the than the of arrest and police we the of incarceration and homicide more than the of arrest and police First World the of incarceration and homicide (and police while the of The the case for the First World what we have argued in this We have that the United States, developed especially on penal to the of penal This is in the fact that it has roughly three for every police while every other developed has about police officers for every The United States would have to the incarcerated by around people and half a more police officers to its officer in with the rest of the we called the First World first the First World on We that it would be a more way to use the of America to penal The and of incarceration would be homicide and other serious crime would and police violence might also The main of our would be the with a significantly number of But these in to the that a more of people than crime or incarceration. of police violence to be than the is but more than those are incarcerated or of a according to which we have reasons to on people the they this the case for the First World Balance.In What’s Wrong with Mass we a more normative case for the First World than we can in this We think that the First World is on a of But we do think that some of out our might without or some in police on the that violence or is different violence by of this would that no amount of violence the use of by the But a in would be to law and and to not public or a social this of is a kind of political And we doubt many are in fact to this of if there is no moral between that the and it to do to one one might think that the is than the as a of We think there are reasons to be of this between the and of But we defend a about these moral questions In What’s Wrong with Mass we that one would have to much more than to different In our this fact the same in the more that we in the we argued serious crime runs in it has number of on and in to the one like the think that the to be from violence or is more than the of or political of this to those on the especially in of the fact by international the United States the First World be a police Figure the in this United States would be roughly to the in today’s and in with the rest of the developed world. the in policing and the in there would be about police officers per homicide in the United This would be the in the developed world the this of from incarceration to one make the case that it would be relatively also that the First World the United States would be a of about three and roughly This would make it the in the developed the in this world would be about as Figure would be the countries. if the First World is one might it is and of the kind of normative and we have given that there are to the balance that and strike between the arms of law reasons that the United States has its penal But our is that the First World is more than the kinds of things that to demand In the America in which we at to a of with than to the is we assume it is to the United States to a in the of the social to use social to the root of crime are we have to be a social must the of those most to Yet an that the of those in this the of the and political readers not think of the First World as an alternative to social Justice and efficiency demand that and in the United States balance the of between the two arms of law enforcement differently from the way they do at would be if this more we think it is that more do what we have in this

Dor Bitan, Ran Canetti, Shafi Goldwasser, Rebecca Wexler

The use of hidden investigative software to collect evidence of crimes presents courts with a recurring dilemma: On the one hand, there is often clear public interest in keeping the software hidden to preserve its effectiveness in fighting crimes. On the other hand, criminal defendants have rights to inspect and challenge the full evidence against them, including law enforcement's investigative methods. In fact, in the U.S. adversarial legal system, the defendant's rights to scrutinize the government's tools are crucial to the truth-seeking process and to keeping law enforcement conduct lawful and constitutional. Presently, courts balance these conflicting interests on a case-by-case basis through evidentiary privilege law, often voicing their frustration with the challenging dilemma they face. We demonstrate how judicious use of a sophisticated cryptographic tool called Zero Knowledge Proofs (ZKPs) could help to mitigate this dilemma: Based on actual court cases where evidence was collected using a modified version of a peer-to-peer software, we demonstrate how law enforcement could, in these cases, augment their investigative software with a ZKP-based mechanism that would allow them to later provide full responses to challenges made by a defense expert -- and allow a defense expert to independently verify law enforcement claims -- while keeping the software hidden. We demonstrate the technical feasibility of our mechanism via a proof-of-concept implementation. We also propose legal analysis that justifies its use, discusses its merits, and considers the legal implications that the very existence of such a mechanism might have, even in cases where it has not been used. Our proof-of-concept may also extend to other verification dilemmas in the legal landscape.

Kenneth A. Bamberger

Individuals who wish to access a website or qualify for a loan are expected to expose personally identifying information, undermining their privacy and security. Firms share proprietary information in dealmaking negotiations which, if the deal fails, may be used by the negotiating partner for a competitive advantage. Regulators are expected to disclose their algorithmic tools to comply with public transparency and oversight requirements, a practice that risks rendering these tools circumventable and ineffective. Litigants might have to reveal trade secrets in court proceedings to prove a claim or defense. Such “verification dilemmas” — costly choices between opportunities that require the verification of some fact and risks of exposing sensitive information in order to perform that verification — appear across the legal landscape. Yet existing legal responses to them are imperfect. Legal responses often depend on ex post litigation procedures that can be prohibitively expensive for those most in need or are otherwise ineffective. Zero-knowledge proofs (ZKPs) — a class of cryptographic protocols that enables verification of a fact or characteristic of secret information without learning the actual secret — can help to avoid these verification dilemmas. ZKPs can provide a feasible means for a party who holds secret information to demonstrate desirable properties of this information while keeping the information otherwise hidden. Yet ZKPs have received scant notice in the legal literature. This Article fills that gap by providing the first deep dive into ZKPs’ broad relevance for law. It explains ZKPs’ conceptual power and technical operation to a legal audience. It then demonstrates how ZKPs can be applied as a governance tool to transform verification dilemmas in multiple legal contexts. Finally, the Article surfaces and provides a framework to address the policy issues implicated by introducing of ZKP governance tools into existing law and practice.

Beth A. Colgan

No abstract is available for this record.

Henry Prakken, Floris Bex, Anne Ruth Mackor

Decisions concerning proof of facts in criminal law must be rational because of what is at stake, but the decision-making process must also be cognitively feasible because of cognitive limitations, and it must obey the relevant legal-procedural constraints. In this topic three approaches to rational reasoning about evidence in criminal law are compared in light of these demands: arguments, probabilities, and scenarios. This is done in six case studies in which different authors analyze a manslaughter case from different theoretical perspectives, plus four commentaries on these case studies. The aim of this topic is to obtain more insight into how the different approaches can be applied in a legal context. This will advance the discussion on rational reasoning about evidence in law and will contribute more widely to cognitive science on a number of topics, including the value of probabilistic accounts of cognition and the problem of dealing with cognitive biases in reasoning under uncertainty in practical contexts.

Р.В. Костенко

Introduction: the differences in the scientific interpretations of the concept of "state of proof" are due to the use of different methodological approaches in its study. This category is usually associated with "sufficiency", which, in turn, means that what is at stake meets the needs, the necessary conditions; manifests itself to the necessary extent; is available in the necessary amount. Accordingly, the state of proof in criminal proceedings should reflect the result of cognitive activity based on sufficient evidence, to summarize the process of proving the circumstances and facts relevant to the correct resolution of the criminal case, to answer the question of availability of the optimal amount of evidence to make an informed decision.

Amalia Amaya

No abstract is available for this record.

Brendan T. Beery

The Senate proceedings occasioned by Dr. Christine Blasey Ford’s allegation against Justice Brett Kavanaugh left the then-nominee calling them a “circus” and observers confused about who was supposed to prove what and by what standard. Since the Senate is ill-suited to sorting out cases and controversies (and since the Ford-Kavanaugh matter will surely not be the last of its kind), the Senate should adopt standards (burdens of proof) for future judicial-nominee proceedings that it borrows from a sister branch—the judiciary. In any proceeding, the burden must be laded—it must be determined which party has the burden in the first place. It must also be weighted—it must be determined how much of a burden is to be imposed. This lading and weighting takes place with regard to both the burden of making out a colorable claim (the burden of production) and also the threshold for deciding in a party’s favor (the burden of persuasion). Courts often lade the burden of persuasion, in particular, on the party that (a) has the lesser interest at stake, (b) precipitates (as distinguished from initiates) the action, or (c) warrants special suspicion and scrutiny. This Article applies these principles to Senate judicial-nominee proceedings, noting that those proceedings sometimes involve two separate inquiries: (1) the qualification (or general suitability) inquiry, and (2) the inquiry into any allegation of specific and potentially disqualifying wrongdoing. The Article posits that, as to the qualification inquiry, the nominee has the burdens of production and persuasion and must show with convincing evidence that he or she is suitable for office. As to the allegation inquiry, although the accuser should have the burden of producing credible evidence to establish a plausible claim of wrongdoing, sound principles mitigate against the accuser bearing the ultimate burden of persuasion. That burden should rest with the nominee, who must show that the allegation is implausible, incredible, or unreasonable. Finally, this Article proposes a sliding scale for determining the precise threshold of proof required to meet this burden, focusing on the three different levels of federal judicial appointments (district judge, circuit judge, and Supreme Court justice) and accounting for the different interests involved as to each.

Alec D. Walen

The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty.

Nayha Acharya

Canadian courts use simple probability reasoning inconsistently in personal injury litigation, subjecting litigants to irregular legal principles and potentially improper compensation. Turning to foundational principles of tort litigation, I suggest a new framework for the availability of simple probability that would promote greater coherence. Simple probability reasoning is understood as an alternative standard of proof that enables compensation for a loss proportional to the likelihood that the loss will occur. Accordingly, the availability of simple probability is thought to depend on which types of facts (past vs. future vs. hypothetical facts) are amenable to balance of probabilities proof versus simple probability. This is the ‘type of fact’ framework, but it is not applied consistently. Part 1 argues that the inconsistency is rooted in the mischaracterization of simple probability reasoning as a standard of proof. It is better conceived of as a method of enabling chances, in their own right, to become legally relevant facts. Understood this way, simple probability is available only where chances are relevant to the legal determination at stake. I apply this characterization in Part 2, concluding that while simple probability reasoning is irrelevant to liability determinations, it is crucial in appropriately assessing damages.

Patricia Cochran

One of the questions that lies at the heart of the Insite case is this: what kind of connections should exist between the law and the people it governs? In this short comment, I explore one of the ways this question informs the treatment of evidence and proof by focusing on the section 7 aspect of the case and the question of arbitrariness. With the goal of inviting discussion, I suggest that in cases involving the constitutional rights of marginalized individuals and communities, the concept of the “burden of proof” can provide a way to help understand what is at stake, and what criteria we might use to relate the burden of proof to values of equality and justice.

John H. Blume, Sheri L. Johnson, Susan E. Millor

"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder. Lennie was doomed because he lived in a fictional world where virtually no one understood the nature and severity of his intellectual disability, and thus people were predisposed to believe that Lennie was a cold-blooded murderer who deserved the ultimate punishment. But how would Lennie fare today--not in Steinbeck's fictional Depression-era America, but in the twenty-first century and in our current criminal justice system? Is the criminal justice system equipped to fairly treat mentally retarded defendants in the quest for "truth"? In this article we have argued for a number of procedural protections to safeguard mentally retarded defendants against the heightened risk of wrongful conviction, i.e., providing counsel or an advocate with training in mental retardation, creating safeguards against the admissibility of false confessions, assuring the reliability of informant and codefendant testimony, informing the jury of the heightened risk of error and altering current burdens of proof. We have elected to sketch several procedural protections rather than defend one or another as the most crucial. For any criminal justice system committed to protecting the Lennies of the world against the heigbtened risk of being found guilty of crimes they did not commit, these procedures are a necessary beginning.

Jay D. Aronson

No abstract is available for this record.

Sujit Choudhry

R. v. Oakes is widely regarded as one of the most important judgments interpreting Canada’s Charter of Rights and Freedoms. In addition to laying down its famous proportionality test to assess the reasonableness of limits on Charter rights, it clarified the Supreme Court of Canada’s Court’s interpretive methodology for Charter cases, perhaps most centrally that rights are of presumptive importance, and limitations the exception that are only acceptable if governments meet a demanding test of justification. The citation of Oakes by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the United Kingdom, Vanuatu and Zimbabwe has made Oakes one of the central models for rights-based constitutional adjudication. So the almost immediate retreat from Oakes is of broader constitutional significance, both domestically and abroad. There is a dominant narrative on what the true legacy of Oakes and the retreat from Oakes are. The argument is that Oakes set out a uniform approach for assessing justifiable limitations on Charter rights irrespective of differences in context, but that in the decade following Oakes, the Court searched for criteria of deference, to reliably and predictably categorize cases where deference was warranted and those where it was not. These categories were not applied consistently by the Court, and, indeed, produced disagreement within the Court over how they should be applied in specific cases. Underlying both trends were concerns regarding the cogency of the distinctions employed by the Court to delineate the boundaries of these categories. Although the dominant narrative captures much of Oakes‘ legacy, it misses much of what is at stake in many recent s. 1 cases, and by implication, what the true legacy of Oakes and the retreat from Oakes are. Oakes created an enormous institutional dilemma for the Court, by setting up a conflict between the demand for definitive proof to support each stage of proportionality analysis, and the reality of policy making under conditions of factual uncertainty. The legacy of Oakes is that the central question of s. 1 is how the Court should allocate the risk of factual uncertainty when governments legislate under conditions of imperfect information. If Oakes is a comparative model for proportionality analysis under other rights-protecting constitutions, then these kinds of problems are not particular to Canada. Foreign courts would be wise to grapple with these difficulties with the benefit of two decades of reflection by Canadian courts instead of simply applying the Oakestest in its original and undeveloped form.

Randolph N. Jonakait

No abstract is available for this record.

Benjamin J. Priester

No abstract is available for this record.