Blockchain Papers

Mark Fenwick, Marcelo Corrales Compagnucci

Advocates of blockchain and related technologies believe they hold the promise of transforming access to justice by leveraging decentralization and transparency to create more effective and equitable legal processes, and a more inclusive society. Unlike alternatives, which often suffer from inefficiencies and biases resulting from excessive centralization, blockchain can eliminate intermediaries and ensure immutable records, democratizing legal resources and empowering traditionally marginalized groups and communities. This chapter explores the multifaceted impact of blockchain on access to justice, examining how blockchain-based technologies like non-fungible tokens (NFTs) and decentralized autonomous organizations (DAOs) might facilitate procedural and substantive legal improvements, offering a pathway to a more just society. The chapter begins with an overview of blockchain technologies and use cases, followed by an analysis of access to justice and its emergence and development. We then explore some practical applications of blockchain in advancing access to justice, considering both procedural and substantive perspectives, taking the example of NFTs and DAOs. A critical examination of recent developments and a more skeptical narrative on the limitations and challenges of blockchain is then introduced. The chapter concludes with brief reflections on future directions, highlighting the potential and ongoing debates and challenges surrounding the integration of blockchain into existing legal frameworks and the transformative potential of technology, more generally.

Ardi Kolah

No abstract is available for this record.

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

Cindy King

Cindy King Man v. Himself The story is being disassembled for you and for me. Any flower of at least three petals will be reverse engineered. The tragedy still happens even if you tear out the last page. Even if you step into the lobby, the violence still occurs, even if you look away. Sometimes it happens off-stage. Just ask Antigone, Agave, Iphigenia— The plot has been drafted and erased so many times there's a hole where words are supposed to be. No one's surprised that it was all a dream (in fact, they're angry and tired). The promise of an ending, an optimistic illusion: cyptocurrency, non-fungible token, a skin your digital self can wear. Rain washes the wisteria. Eurydice, don't even think about looking back. The stone has already sealed the entrance. The only way is forward. The rain washing your car yesterday is selling flood insurance today. The best treatment for hubris is to be looked at through the wrong end of binoculars. There's a lesson here, a takeaway, if only the rain would stop, if only we could find a story and character fool enough to deliver it. King 8 ...

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.

Matthew H. Kramer

Abstract This chapter concludes Freedom of Expression as Self-Restraint by probing briefly a few of the knotty procedural issues that attend the efforts by any system of governance to implement the moral principle of freedom of expression (or, rather, to implement some constitutional or statutory guarantee that corresponds more or less closely to that moral principle). Among the issues at which the chapter glances are the scalar character of compliance by systems of governance with the principle of freedom of expression, the legal remedies that are apposite for giving effect to the moral obligations imposed by that principle, the location and stringency of the burden of proof in litigation where communicative liberties are at stake, and the location of the general legal powers to invalidate statutes and other laws. The chapter explains why these issues have been consigned to a fairly brief concluding portion of the book, instead of being treated in depth.

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.

Oung-Seok Jeong

현재 우리나라는 국가영토의 협소성, 경찰력의 분산으로 인한 광역경찰기능의 약화, 일사분란하게 움직여야 하는 경찰조직의 특성, 경찰 위계질서의 해이, 지역 간 경찰력의 질적 수준 불균형, 지자체의 낮은 재정자립도 등을 이유로 자치경찰제를 도입하지 않고, 경찰청장부터 지구대 순경까지 연결되는 가장 강력한 중앙집권적 국가경찰제도를 유지하고 있다. 이에 수직적인 경찰조직의 지휘체계를 변경하여 인사·예산권 등을 지방자치단체에 이양함으로써 중앙에 집중된 경찰 행정권을 지방에 분권하고 지역별 특성에 맞는 민생치안을 확립하여 봉사하는 경찰상을 구현하겠다는 것이 자치경찰제의 도입배경이다. 즉, 선진국 경찰처럼 지역주민과 함께 하는 주민중심 또는 봉사중심의 고객지향적 치안서비스를 제공함과 동시에 경찰에 대한 주민통제를 강화함으로써 과도한 중앙집권적 국가경찰제도의 폐해를 제거하자는 것이다. 나아가 실효적인 자치경찰제도가 시행되면, 주민의 참여로 주민의 의사가 경찰운영에 적극 반영하고, 주민이 경찰활동을 감시·통제할 수 있게 되어 권한 남용이 줄어들 수밖에 없다는 것이다. 이에 우리나라의 현행 경찰법 및 관련 법률도 모두 전면적인 자치경찰제의 도입을 전제로 규정되어 있다. 다만, 자치경찰제의 실시로 자치단체에 속한 자치경찰이 일부 사법경찰관의 업무를 수행하게 된다는 가정 하에, 자치경찰의 수사업무는 중앙정부소속인 검사로부터 독립하여 자치단체가 독자적으로 처리하고, 검사의 수사지휘를 받을 필요가 없다는 주장은 시·도·자치구 등 지방자치단체 소속인 특별사법경찰관도 검사가 아닌 시장이나 구청장 등 지방자치단체장의 지휘를 받아야 한다는 주장과 다름 아닌 것이라 할 것이다. 위에서 이미 살핀 바와 같이 우리나라의 법체계상 사법업무는 본질적으로 국가사무일 수밖에 없고, 특히, 공소의 주체와 수사주체의 연결은 필수불가결하고, 검찰제도가 존재하는 이상 경찰수사는 자치경찰의 경우에도 “국가사무를 기관 위임받은 것”으로 보아야 하고, 따라서 검사의 수사지휘를 받아야 하는 것이다. 오히려, 자치경찰제도가 도입된다면 법집행의 형평성, 통일성을 기하고 인권보장을 담보하기 위하여 범죄수사에 관한 전국적으로 공정하고 통일적인 형사사법을 실현하기 위하여 검사의 수사지휘권은 더욱 강화되어야 할 필요성이 있다.Currently, the nation maintains the strongest centralized police system linking the police chief to the district police, citing the narrowness of the national territory, the weakening of the police function caused by the dispersion of police forces, the nature of police organizations that must move in a hurry, the lax police order, the imbalance in the quality of police forces between regions, and the low level of local autonomy. The background of the introduction of the local police system is that by changing the vertical police organization s command system and transferring personnel and budget rights to local governments, the central police administration authority will be decentralized to the provinces and the police officers who serve the people s livelihood by establishing measures suitable for the characteristics of each region. In other words, it is to eliminate the evils of the excessive centralized national police system by providing residents-oriented or service-oriented customer-oriented security services with local residents like police in advanced countries, while strengthening resident control over the police. Furthermore, if the effective self-governing police system is implemented, the residents doctors will be able to actively reflect on police operations and the residents will be able to monitor and control police activities, thereby reducing abuse of authority. The nation s current police law and related laws are all stipulated on the premise of the introduction of a full-scale self-governing police. Assuming that the implementation of the local police system would result in the operation of some law enforcement officers in the local autonomous community, it would be no different from claiming that the district police s manual work should be handled independently by the central government prosecutors, and that the special judicial police officers belonging to the local governments, such as the city and provincial governments, should be under the direction of the mayor or district heads. As we have already looked at above, the legal work of our country has to be essentially a state affairs, and especially since the connection of the prosecution with the investigation body is indispensable, and since the prosecution system exists, the police investigation should be regarded as a commissioned agency by the local police, and therefore should be directed by the prosecutor. Rather, if the self-governing police system is introduced, it is necessary to further strengthen the investigative command of prosecutors in order to realize a fair and unified criminal law concerning criminal investigations nationwide to ensure the fairness and unity of law enforcement and to guarantee human rights.

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.

Roderick Munday

This chapter considers the burdens borne by both parties when an issue of fact is at stake. It explains how the nature of a burden in the law of evidence is obscured by the use of the term in a number of different senses. The two principal senses are the burden of adducing evidence and the burden of proving facts. In relation to each, questions arise as to its incidence and discharge. The chapter considers the allocation of the burden in these two senses, at common law and under statutory provisions, and the effects of presumptions of law or agreement of the parties. Finally, this chapter is concerned with the extent of the two burdens, and the way in which the burden of proof has to be explained to the jury.

Jan van Dunné

Mining typically may cause soil subsidence problems. In the Netherlands, that has been the case in the old coal mining district of Limburg (southern Netherlands) and also, more recently, in the new gas and salt mining areas in the north of the country. In the Province of Groningen, three decades of gas mining have caused a soil subsidence of over 35 centimetres. Furthermore, since earthquakes increasingly occur and have even passed 3.3 on the Richter scale, which is the threshold of danger to property, in the late 1990s, their relation to mining activities is no longer denied by the industry after some decades of stubborn negation. In this article, a number of reasons are presented, including arguments derived from liability under tort law (strict liability, combined with reversal of proof, as applied in Limburg since the 1920s), for why the 2003 Dutch Mining Law (as amended in 2017) does not appear to be successful in reflecting the state of the art. One would have expected more in a field with so much at stake, not just for the mining industry but also for citizens and the environment at large. Therefore, it is observed that the liability of mine operators is treated better by the legislation in adjacent European countries. The analysis of the current Dutch Mining Law, concentrating on the issue of liability for damage caused by soil subsidence and earthquakes to private property and the environment, is made from a comparative perspective, with special attention to French, German, and British mining law.

John Rappaport

Previous articleNext article FreeThe Structural Function of the Sixth Amendment Right to Counsel of ChoiceJohn RappaportJohn Rappaport Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreThe Sixth Amendment guarantees “the accused,” “[i]n all criminal prosecutions,” “the Assistance of Counsel for his defence.”1 The right to court-appointed, publicly funded counsel this language calls to mind today is a recent invention.2 The “root meaning” of the Sixth Amendment’s Counsel Clause, the Supreme Court has stressed—the one with ties to the founding tradition—is the right to retain counsel of one’s choice.3 Yet until just last Term, no criminal defendant had ever persuaded the Court to reverse a conviction solely on counsel-of-choice grounds; many had tried in vain. I consider in this article whether there is any satisfying, functional account that can explain the disjuncture between what the Court says about the right to counsel of choice and what it does when presented with an asserted violation of that right.The leading academic and judicial theories justify the right to counsel of choice either as securing the effective assistance of counsel, and thus a fair trial, or as a facet of the defendant’s prerogative to control his own defense. These theories, however—grounded in majestic-sounding notions of fairness and autonomy, respectively—struggle to explain counsel-of-choice doctrine. For one thing, indigent defendants—who number more than four out of every five—simply have no right to choose their counsel at all. And while criminal procedure rights are seldom absolute, balancing the defendant’s fairness and autonomy interests against the government’s countervailing needs cannot explain the pattern of Court decisions in anything but the most ad hoc manner. Seemingly unremarkable governmental interests prevail while a stronger one faltered this past Term.My claim is that something very different makes sense of the Supreme Court’s counsel-of-choice decisions. The failure of the leading theories, therefore, does not condemn the doctrine to incoherence. The right to counsel of choice, I argue, functions not as a powerful individual entitlement, as much of the judicial and scholarly writing suggests, but rather as a weak, system-level safeguard against socialization of the criminal defense bar. I use “socialization” here to refer to “the action or process of bringing” an institution “under state ownership or public control”—that is, not in the sense of social psychology but rather the political theory of socialism.4 Only when the government advances a theory for restraining defendant choice that, if accepted, would allow it to strangle the private defense bar and socialize criminal defense does this antisocialization principle require that the right to counsel of choice prevail. This means that even a weak governmental interest—like a judge’s desire to push a case to trial quickly—can overcome the right as long as that interest is meaningfully bounded in its reach across the criminal docket. But it also means that a law requiring all defendants to use court-appointed counsel—mandating a socialized defense bar—would violate the Sixth Amendment despite its equality-promoting effects.An antisocialization principle explains, in particular—far better than a theory grounded in individual fairness or autonomy—last Term’s counsel-of-choice decision, Luis v United States,5 in which the Court for the first time found a stand-alone counsel-of-choice violation. The defendant in Luis was charged with health care fraud of around $45 million, almost all of which she had already spent. Seeking to preserve the $2 million remaining in the defendant’s possession, which would be necessary to pay restitution and criminal penalties if the defendant were convicted, the government obtained a pretrial order prohibiting the defendant from dissipating her assets. This included the defendant’s “untainted” assets—assets not traceable to her alleged crimes—which the defendant wished to spend to mount her criminal defense.6Reversing the Eleventh Circuit Court of Appeals, a fractured Supreme Court held that the trial court’s order violated the defendant’s Sixth Amendment right to counsel of choice. Justice Breyer announced the Court’s judgment in a four-Justice plurality opinion, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor. Justice Thomas concurred in the judgment, resting on a textual and historical analysis. Justice Kennedy, joined by Justice Alito, dissented, finding the case indistinguishable from precedent that had rebuffed similar counsel-of-choice claims. Justice Kagan also dissented, questioning whether that same precedent had been correctly decided.An antisocialization theory—but neither fairness nor autonomy—cogently distinguishes Luis from all of the cases in which the Court rejected counsel-of-choice claims. That includes the two famous and closely related precedents the Justices in the majority strained to differentiate in Luis,7 ultimately relying on unpersuasive statutory and historical formalisms that I will examine. Antisocialization can also begin to explain (though not necessarily justify) the complete denial of the counsel-of-choice right to indigent criminal defendants, a disquieting feature of the doctrine in light of equal-protection principles.I explore these issues below. Part I introduces the leading theories courts and commentators have developed to justify the right to counsel of choice. It then exposes the inability of these theories to explain the doctrine. Part II demonstrates how an antisocialization theory better describes the law. In the tradition of criminal procedure scholarship seeking theories that reconcile the Court’s decisions,8 I do not argue that antisocialization ought to drive the doctrine; my project is positive, not normative. I seek to explain the law, not to justify it. Nevertheless, I do develop in Part II a plausible normative defense for the antisocialization theory in order to bolster my descriptive claim. The defense is sufficient to persuade me that Luis was correctly decided. Were I to craft my own justification for the counsel-of-choice right, however, it might well be markedly more robust.My argument is not that antisocialization is the only fathomable theory that explains the doctrine. It is possible, for example, that counsel-of-choice doctrine tracks historical understandings of the right. Yet neither the Justices nor commentators have shown this to be generally true, leaving the burden of proof, for the time being, on the historical theory’s would-be proponents. I am skeptical, though, I will add, that a historical theory would be as useful as the functional theory I explicate here, confronting, as it must, the familiar problem of what to do when formal materials (i.e., historical understandings) run out.9In Part III, in lieu of a traditional conclusion, I step outside the Sixth Amendment to critique counsel-of-choice doctrine from an external perspective. The doctrine itself is young and undertheorized, and much remains to be worked out in due course. But regardless of how the Court resolves any outstanding Sixth Amendment questions, I argue in Part III that several of its counsel-of-choice precedents may run aground on other, settled constitutional protections. These are conflicts the Court should consider alongside Sixth Amendment principles as it continues to elaborate the right to counsel of choice.I. Difficulties with the Leading Descriptive TheoriesTwo principal theories—what I call fairness and autonomy—dominate judicial and scholarly thinking on the right to counsel of choice. Yet however well these theories might justify the right as a philosophical matter, they cannot explain counsel-of-choice doctrine. In this part, I describe the fairness and autonomy theories and illustrate the limits of their descriptive power. In particular, I show how these theories are unable cogently to distinguish Luis, in which the Court found a stand-alone violation of the defendant’s right to counsel of choice, from the many cases in which it did not.10A. FairnessProbably the most popular theory of counsel of choice describes the right as helping the defendant secure a fair trial. This fairness theory is outcome-oriented and instrumental—it regards the right as a means to the ultimate end of fair adjudication in an adversary system. Perhaps more precisely, the fairness theory views the right to counsel of choice as securing the right to effective assistance of counsel, which itself ensures a fair adjudicatory process.The plurality opinion in Luis (to the extent it is theorized at all) seems to rest upon this understanding. Although it acknowledges that the entitlement at stake is that to “counsel of choice,” the plurality elides that right with the more “fundamental” right to counsel itself, without which the defendant, “though he be not guilty, … faces the danger of conviction because he does not know how to establish his innocence.”11 Elsewhere the Court has “recognized that the purpose of providing assistance of counsel ‘is simply to ensure that criminal defendants receive a fair trial,’” and thus, “while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant.”12There is a related position, which is sometimes portrayed as independent from the fairness theory, but which seems to me sufficiently related to warrant common treatment. That view regards the right to counsel of choice as facilitating a “meaningful relationship” between counsel and her client. The idea is that a criminal defendant will place greater trust in, and form a better relationship with, a lawyer he has selected rather than one the court has thrust upon him.13 Upon inspection, however, most formulations of the “meaningful relationship” position are grounded in the belief that a better attorney-client relationship will enable a stronger defense.14 The relationship is typically not thought to be valuable in its own right.Some argue that good attorney-client relationships help legitimize case outcomes—that defendants will accept their fate more readily if they believe they received zealous representation from counsel they selected.15 To the extent the outcomes being legitimized are substantively fair, this seems reasonable to me, though not meaningfully distinct from the fairness theory itself. To the extent that unfair outcomes will appear legitimate, it is far less clear that this plausibly justifies the right.B. AutonomyA second strand of legal thought—absent in Luis—maintains that the right to counsel of choice has intrinsic value as an aspect of the criminal defendant’s individual autonomy and control over his own defense. Unlike the fairness theory, this autonomy theory is not outcome-oriented; it does not depend on an assumption or prediction about how counsel will affect the fairness or result of the defendant’s proceedings. The right to counsel of choice, on this view, is valuable for its own sake, not because of the results it’s thought to produce.16The Supreme Court’s opinion in Gonzalez-Lopez v United States17 exemplifies the autonomy position. The Sixth Amendment “commands,” the Court admonished in Gonzalez-Lopez, “not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best.”18 This “right to select counsel of one’s choice,” the Court continued, “has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial” and should not be confused with the “right to effective counsel.”19 It “reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding.”20Much scholarly commentary on the right to counsel of choice accords with this view, agreeing that “the most important decision a defendant makes in shaping his defense is his selection of an attorney.”21 The attorney acts, among other things, as conduit for the defendant’s “communicative activity in the public forum of the courtroom”; respect for the defendant’s choice of counsel is thus “‘respect for the individual’” himself.22 One commentator, analogizing to the right to self-representation, aptly quoted the Court’s sharp language from that context: “An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed by the Constitution, for, in a very real sense, it is not his defense.”23C. The Theories’ Descriptive ShortcomingsThe fairness and autonomy theories for the right to counsel of choice are perfectly lucid as a philosophical matter. What they lack, however, is any real explanatory power. If the theories did explain the doctrine, they would be able to distinguish Luis, in which the Court found a counsel-of-choice violation, from the many cases in which it did not. Yet as I show in this section, neither theory is up to this task. Specifically, neither theory is able persuasively to differentiate Luis from three sets of counsel-of-choice precedents that capture most, if not all, of the Supreme Court’s work in this domain: (1) cases involving the inherent powers of the trial court to control litigation; (2) fee-forfeiture cases involving “tainted” (rather than “untainted”) assets; and (3) cases involving indigent criminal defendants.1. Inherent powersMundane decisions courts make in the course of criminal litigation, or even antecedent choices regarding judicial administration, can have the effect of denying a criminal defendant his first-choice aide. Consider three examples. In one case, the court denies a midtrial continuance necessary to accommodate the desired attorney’s schedule. In another, it prohibits counsel from representing the defendant alongside two of his codefendants, notwithstanding conflict-of-interest waivers from all of the defendants concerned. And in the third, it simply enforces court rules barring practice by nonlawyers, disbarred lawyers, and lawyers from out of state.In none of these cases, the Court has said, does the trial court violate the defendant’s right to counsel of choice.24 But the trial court’s actions in each instance certainly implicate the defendant’s fairness and autonomy interests. The defendant who was denied a continuance, for example, argued that the lawyer assigned to him had not zealously represented his interests.25 Disagreeing, the Court denied his claim and expressly rejected the lower court’s position, rooted in the fairness theory, that the right to counsel of choice safeguards a “meaningful relationship” between the defendant and his attorney.26 Likewise, deciding to roll the dice with a lay representative27 or one subject to a potential conflict of interest28 would seem to fall squarely within the autonomy-premised right to control one’s defense. This is the same interest, notably, that supports the right to self-representation, which requires the trial court to let an uneducated defendant represent himself.29 At the very least, these outcomes are difficult to reconcile with the type of robust individual protection the Court’s “root meaning” language implies.Of course, observing that the right fails in some cases to protect the defendant’s interests—whether rooted in fairness or autonomy—may suggest nothing more than that those interests were outweighed by the government’s countervailing needs through a process of interest-balancing. Yet if counsel-of-choice doctrine reflects a weighing of fairness or autonomy interests, on the one hand, and government need, on the other, we would expect the government to prevail when it matters most and lose when it matters least—especially as the defendants’ interests seem roughly equivalent across the cases.30The doctrine does not line up this way, however. This is a point that was harder to see before Luis, because the government’s interests had prevailed in every case. That they fell short in Luis suggests—if the doctrine indeed reflects a balance of the defendant’s fairness or autonomy interests against state prerogatives—that the government interest in Luis was weaker than in all the prior cases. But that is a difficult position to maintain. In the earlier cases, the government won by asserting interests such as the “great deal of latitude” necessary “in scheduling trials,”31 the desire to ensure that “legal proceedings appear fair to all who observe them,”32 and “the legitimate wish of district courts that their judgments remain intact on appeal.”33 In Luis, it had what the Court has elsewhere characterized as a “strong governmental interest in obtaining full recovery of all forfeitable assets,”34 which aims to punish and deter serious crimes.35 If there is a theory as to why that “strong governmental interest” is actually weaker than the trial court’s interest in controlling litigation by, say, denying a continuance, the Court has never disclosed it.The point is not that balancing is irrelevant, or in no way enhances the explanatory power of the leading theories. Rather, the point is that, to transcend simplistic, ad hoc explanations, balancing—to borrow from Professor William Stuntz—“must reflect some underlying theoretical structure.”36 Where, as here, the interests on each side of the balance are neither trivial nor overwhelming, “balancing without structure explains all results equally well; it is not so much a positive theory as a confession that no positive theory exists.”37 “The real challenge,” I agree with Stuntz, “is to explain why the balances are struck as they are in particular cases, and to do so in a way that allows one to assess, at least in broad terms, whether the doctrine is internally coherent.”38 Proponents of the fairness and autonomy theories have produced no such explanation, and I am doubtful that they can.2. of fee-forfeiture cases the Court in the issues it in In v United the Court held that the Sixth Amendment to of “tainted” traceable to criminal even when the defendant to spend the to pay the lawyers who defended The same the Court in United v for a pretrial order the government are and Court’s (1) though in the defendant’s possession, are “not and (2) the defendant has Sixth Amendment right to spend for by an even if those are the only way that that defendant will be able to retain the attorney of his way, defendants have Sixth Amendment right to choose their and a defendant are as it will not be forfeitable until by which time the defense will have an interest in Yet through a statutory in the in the United at the time of the criminal the government a claim to the to the And the pretrial order in of course, long before to pretrial of the defendant It is, in other a on the defendant’s protect its at trial and protect the interest in full recovery of any seems to that the of with which a criminal defendant to pay his attorney on the fairness and autonomy interests the right to counsel of choice is to or at least less the defendant may be to with counsel and defense his to with the in an and him of some control over his own defense. If the fairness and autonomy theories are to explain these cases, therefore, it be because the “strong governmental interest in obtaining full recovery of all forfeitable the defendants’ And in this does not seem a The principal is how to reconcile these earlier cases with the defendant’s in the fairness nor the autonomy theory explains why the Court the result in that between and on the that the of but in Luis the was does that affect the Sixth Amendment the fairness and autonomy an matter, whether the are does not affect the defendant’s fairness and autonomy interests. interests in controlling her defense and obtaining a fair adjudication are the same regardless of what of she to The explanation, if there is be that the government’s argument for is stronger than for assets. The Luis plurality can be to this position. however, is least to one in of a functional plurality characterized the between and as “the between what is and what is the statutory the plurality to to the government at the time the is The same is not true, it of her the defendant before trial, claim that the is free and This the plurality to the government’s interest in of a criminal or restitution as in to the right to counsel of choice, from the of a fair, effective criminal between and cannot the the plurality upon while it is that the government does not own forfeitable before the same is of forfeitable assets. What the Court calls “tainted” all, only defendant ownership of either with the only a What the pretrial order in is that the defendant’s were not that they were The in that case to be forfeitable because they were but that does not that forfeitable for some other as to for already of a different constitutional way, to the government can but not is to the The purpose of the either to whether the are the defendant’s or are forfeitable because the defendant a trial, when the are the to this is The the Court thought “the up until conviction was simply that they be upon a of the same here, with respect to the the Luis plurality to to but not the “The purpose is to defendants from by their to it does however, the time at which to forfeitable to the is it clear why statutory of is to a Sixth Amendment analysis. If only to that is simply a of It is to that, if to the plurality would its But that is what the of its because is “the to as among criminal defendants who are in To borrow an from Justice a who million and million in a If he his on and and then needs for defense counsel, out of the government can the But if he the he can use the to pay an This is “the and the defendant’s legal in the two of and the opinion, I should add, no Thomas that the of the Counsel the defendant’s right to spend his to a defense that that right necessarily some on the government’s to the defendant’s before and that the practice pretrial of but not that necessary are several with Justice position for my Thomas expressly any interest in an that functional for the it practice is however much sense it it is far from clear that Justice Thomas advances a theory of the Sixth Amendment at all, as to a theory about the due process to the of any assets. Thomas that a defendant’s may not be before trial whether he to spend on a defense attorney or something This that the Sixth Amendment itself is actually even if historical practice does reconcile Luis with the prior cases, Justice Thomas makes no to show that it also explains the Court’s other counsel-of-choice to that of law at all. I at the it remains that all of the Court’s decisions to with historical but I am and neither the Court nor commentators have the work to it. because the defendant’s interest in counsel of choice is the same regardless whether he to pay his attorney with or the fairness and autonomy theories can explain the cases only if the government’s side of the balance is in the case than in the is, however, no good functional account of why that would be The cases thus from the explanatory power of these leading theories of the that indigent criminal defendants might retain a Sixth Amendment right to counsel of choice has to the a is one indigent defendants have no right to counsel of If the theories are this be because in counsel to these defendants is not does not on autonomy interests, or is by governmental some of the of these however, are weaker than they may at first I each one in what would have to the defendant in Luis had the Court against her and her to pay is no that she would have been through trial by “the of course not. the court would have an attorney to represent a public or a private attorney funded the Justice an have to the defendant a fairness only if there were an unacceptable that counsel would to the effective assistance of counsel necessary to make the trial of two it may be that the defendant to with counsel would not have her right to a fair trial, and thus should not have been to violate her right to counsel of choice. the Court has rejected any that counsel are or less effective than be the Court has the on a an matter, this is not an

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.

Aron Hogden

For over forty years, South Dakota courts have presumed the Fourth Amendment does not require an officer making an arrest for drunk driving to obtain a warrant before requiring a blood Officers, acting on this presumption, have required suspects to submit to blood tests even after the suspect refuses. Recent case law shows this presumption is mistaken. The need for a warrant depends on the totality of the circumstances. The South Dakota judiciary should act to reclaim the weighty role of standing between police officers seeking evidence through a Fourth Amendment search DUI cases and the citizenry they have sworn to protect. To accomplish this, the judiciary should unequivocally articulate circumstances that require a warrant and circumstances where police officers may forego obtaining a warrant. When police officers clearly understand what the courts expect, the officers' job is made easier, the judiciary's warrant approval process becomes more efficient, and the citizens' rights are better protected. I. INTRODUCTION The Fourth Amendment (1) requires police officers obtain a warrant before a person arrested for Driving Under the Influence (DUI) can be required to submit to a blood (2) If, however, the police officer reasonably believes he faces an emergency in which the delay necessary obtaining a warrant ... threaten[s] 'the destruction of evidence,' the officer may forego the warrant requirement. (3) This exception to the general warrant requirement falls within what are known as exigent circumstances. (4) In a DUI case, the most important evidence of the crime obtaining a warrant that are not as prevalent urban jurisdictions. (176) These include: the lack of cell phone coverage to call a magistrate, distance to medical facilities, and the unavailability of a magistrate to make the warrant determination. (177) Each future determination made by South Dakota courts will help inform police officers and prosecutors about how to conform their procedures to Fourth Amendment requirements, however the courts should not wait to spell out general guidelines: too much is at stake. (178) In the meantime, courts should not exclude the BAC evidence where an officer relied on the Supreme Court of South Dakota's past decisions condoning warrantless nonconsensual blood tests DUI cases. (179) After all, the purpose of the exclusion of evidence for Fourth Amendment violations is to deter future conduct, not to penalize reasonable reliance on past judicial precedent. (180) South Dakota courts should, on the other hand, caution officers that creating exigency by artificially delaying a blood draw would be rejected. (181) C. GUIDELINES FOR OFFICERS Unfortunately, based on the most current statement of the law governing DUI blood tests, A police officer ... would have no idea--no idea--what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. (182) This confusion can, and should, be cleared up at the jurisdictional level. (183) As a starting point, police officers should get a warrant whenever possible, not just to meet Fourth Amendment requirements, but also because warrants insulate the blood test from a suppression motion and switch the burden of proof to the defendant claiming the search, i.e., blood test, was unlawful. (184) South Dakota allows telephonic warrants, but they are not streamlined. (185) This type of warrant requires an officer to fill out the warrant application and read it verbatim to the issuing magistrate. (186) Once the magistrate approves the warrant, the requesting officer can sign the magistrate's name. (187) Because the circumstances a DUI case are often routine, prosecutors and court officers should advocate for a more efficient process including creating form warrants that require less time to fill out yet still provide individualized and detailed information to the issuing magistrate. …

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.