The Temporal Dimension of Voting Rights

Modern voting rights scholarship agrees on one thing: voting rights are aggregate rights. The right to vote is important, of course, for a variety of individualistic reasons. It may be constitutive of citizenship, central to the inculcation of civic virtue, and so on. But contemporary scholarship begins with the premise that the right to vote is meaningful in large part because it affords groups of persons the opportunity to join their voices to exert force on the political process. On this account, the fairness of a legal rule affecting voting rights cannot be determined by focusing solely on an individual voter; a resolutely individualistic focus makes it impossible to determine how the rule affects the ability of groups of voters to exercise political influence.

Of Coerced Waiver, Government Leverage, and Corporate Loyalty: The Holder, Thompson, and McNulty Memos and Their Critics

Since 1999, the U.S. Department of Justice (“DOJ”) has had a formal policy detailing the criteria its lawyers will use for deciding whether to prosecute corporations for federal crimes. Three U.S. Deputy Attorneys General (Eric Holder, Larry Thompson, and Paul McNulty) in two administrations have authored and lent their names to different versions of the policy. The content of the policy has, however, largely remained the same. So have the criticisms of the policy from the corporate bar as well as some academics and members of Congress. These criticisms largely miss the mark—despite their constant repetition—for reasons that defenders of the DOJ policy have to date not clearly articulated. The critics seek to lay at the feet of the DOJ policy problems whose primary causes lie elsewhere, in places the critics may be reluctant to have us look. Thus, abolishing the objectionable parts of the policy, as Senator Arlen Specter’s recent bill seeks to do, will not likely have much effect. Taking seriously the problems raised by the critics will require more drastic change than they (or anyone) may be willing to undertake. My aim in this essay is not so much to defend the DOJ policy as to deflate the dominant criticisms and to refocus the debate.

The Perils of Evidentiary Manipulation

Professors Bierschbach and Stein’s observation that evidentiary rules mediate the age-old tension between retribution and deterrence is both fascinating and thought provoking. The idea that the two hitherto balkanized fields are inextricably linked in this quirky but productive way is surely an impressive insight that will force criminal law and evidence scholars never again to look at their respective fields in quite the same way. In this Response, I want to focus on the broader normative question raised by their thesis—whether the legal system should use evidentiary rules to achieve substantive reform. Conveniently for me, I can leave the task of probing the relationship between the Bierschbach-Stein thesis and general criminal law theory to more qualified scholars, like my colleague Professor Mike Cahill.

So “[a]re mediating rules a virtue or a vice?” On this question, Bierschbach and Stein are nominally agnostic. For example, careful not to overstate their case, they acknowledge that such special evidentiary rules “might . . . be seen as illegitimately thwarting the accepted processes for resolving political agreement.” Put plainly, they recognize that evidentiary rules so conceived can become Trojan horses. The overall tenor of their essay and longer article, however, takes a somewhat rosier view. They emphasize the ability of mediating rules to facilitate compromise and “promote a rough social consensus around criminal law in a moral universe that is diverse and pluralistic.”

I am far more skeptical. The use of evidentiary rules to achieve substantive goals strikes me as a Faustian bargain, and, given Bierschbach and Stein’s acknowledgedly tentative position, I hope to dissuade them of the virtues of the practice. My goal therefore is to explore briefly the potential dark side of specialized evidentiary rules. The concerns of injecting substantive goals into evidence law extend far beyond the narrow legitimacy concerns Bierschbach and Stein raise. It is not simply the question of whether we aspire to a pluralistic or majority-take-all democratic society. Rather, evidentiary manipulation threatens the legitimacy of criminal and evidence law.