February 5, 2009
Terrific piece on constructions of equality in criminal law in first JLA issue
The first issue of a notable new law review, the Journal of Legal Analysis, is available here. This new review is notable in part because it is faculty-edited and peer-reviewed, because it has an all-star editorial team and board, and because it is "dedicated to the best legal scholarship from all disciplinary perspectives and in all styles, whether verbal, formal, or empirical." The first issue of JLA is notable for sentencing fans because it includes this great article by James Q. Whitman, titled "Equality in Criminal Law: The Two Divergent Western Roads." Here is the abstract:
Every western society embraces the ideal of equality before the criminal law. However, as this article observes, that ideal is understood differently in the United States and Continental Europe. American law generally demands that all citizens face an equal threat of punishment, while continental European law generally demands that all citizens face an equal threat of investigation and prosecution. This contrast raises a sharp normative challenge: Is it better to think of equality before the criminal law as pre-conviction equality or post-conviction equality? The article makes the case that pre-conviction of the Continental kind is normatively superior. It then asks why American law has opted for what seems a normatively inferior solution, identifying a variety of factors in American culture and the common law tradition that have encouraged the belief that true equality lies in the equal threat of punishment rather than in the equal threat of prosecution.
February 5, 2009 at 05:22 PM | Permalink
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