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October 24, 2016

"Autonomy and Agency in American Criminal Process"

The title of this post is the title of this intriguing new short paper now available via SSRN authored by the always intriguing David Sklansky. Here is the abstract:

This is an essay about the interaction of two assumptions that shape the way fairness is pursued in American criminal procedure.  The first assumption is that fairness is best advanced through a series of procedural rights that defendants can invoke or waive at their discretion.  The second assumption is that the choices made by defense attorneys can fairly be attributed to their clients.

The first of these assumptions reflects a strong national commitment to individualism; the second reflects a heavy reliance on lawyers to safeguard defendants’ interests.  Both reflect a deeply rooted distrust of government.  Each of these two assumptions is defensible, and each relates to fundamental aspects of the national political culture.  Taken together, though, they have narrowed what fairness means in American criminal adjudication; they combine with a kind of negative synergy, making each harder to defend than it might be without the other.

October 24, 2016 at 11:45 AM | Permalink

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