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March 21, 2014

"Legitimacy and Federal Criminal Enforcement Power"

The title of this post is the title of thiis new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums.  All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty.  But why do such disparities exist?  Conventional explanations point to differences among sovereigns’ legal rules, resources and dockets.  These understandings, while valid, neglect to account for a less-tangible source of federal criminal power: legitimacy.

“Legitimacy” refers to the concept, refined through decades of empirical research, that citizens comply with the law, and defer to and cooperate with legal authority, when they perceive both the laws and the authorities to be fair.  A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal power.  Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.

March 21, 2014 at 07:43 AM | Permalink


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The author presents a restricted view of legitimacy. She does not really address why the appearance of legitimacy is just as important as actual legitimacy for the integrative aspects of our judicial institution in the context of United States. The bright spot for practicing lawyers is to read pages 79-85, they are useful for formulating voir dire.

Posted by: ? | Mar 21, 2014 10:36:03 PM

sad thing is this is very true and our federal gov hasn't been fair in a long long long time.

really sad thing is they have went so far into the twilight zone they wouldn't know fair if it walked up and smacked them upside the head.

Posted by: rodsmith | Mar 22, 2014 12:00:26 AM

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