Revising the Model Penal Code: Keeping It Real

The thesis of this talk can be simply stated: In any serious discussion of revising the Model Penal Code (MPC), the object of the game cannot be revising the MPC itself. Rather, the object of any revision of the Code is to promote the reform of the nation\u27s actual criminal codes, as adopted by the state legislatures and Congress

Government by Judiciary: The Transformation of the Fourteenth Amendment

As its title suggests, Raoul Berger\u27s Government by Judiciary states an extreme version of a familiar thesis: The Supreme Court has abandoned its proper role as interpreter of the Constitution and has usurped the power to act as a third legislative chamber. Like kadis under a tree, the Court creates law from mere personal predilections. The main instrument of this judicial coup has been the fourteenth amendment. Government by Judiciary is an historian\u27s book, strongest when using the historian\u27s tools to illuminate the past. Underlying this research, however, is a remarkably simplistic theory of constitutional interpretation, a theory that forms the basis for Professor Berger\u27s dire conclusions about the role of the Supreme Court in American government

The Sentencing Guidelines as a Not-So-Model Penal Code

We are accustomed to thinking about the criminal law, and the procedures for enforcing it, as divided into two separate stages. The first stage – the subject of penal codes and jury trials – concerns the definition of culpable conduct and the adjudication of guilt. The second stage – sentencing – concerns the consequences of conviction for the offender. Only rarely do we acknowledge that the conventional separation of these stages into compartments is highly misleading. The articles in this Issue of FSR address, in one way or another, the extent to which the concerns of the substantive criminal law and the law of sentencing are in fact closely integrated. To a substantial extent, the federal sentencing guidelines can be seen as a continuation, from a very different philosophical perspective, of the effort to reform the federal criminal code. How successfully do the guidelines accomplish this end

Government by Judiciary: The Transformation of the Fourteenth Amendment

As its title suggests, Raoul Berger\u27s Government by Judiciary states an extreme version of a familiar thesis: The Supreme Court has abandoned its proper role as interpreter of the Constitution and has usurped the power to act as a third legislative chamber. Like kadis under a tree, the Court creates law from mere personal predilections. The main instrument of this judicial coup has been the fourteenth amendment. Government by Judiciary is an historian\u27s book, strongest when using the historian\u27s tools to illuminate the past. Underlying this research, however, is a remarkably simplistic theory of constitutional interpretation, a theory that forms the basis for Professor Berger\u27s dire conclusions about the role of the Supreme Court in American government

\u3cem\u3eFrye\u3c/em\u3e and \u3cem\u3eLafler\u3c/em\u3e: No Big Deal

The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process is at least as important as competence in investigation or trial. Nor is there reason to believe that the decisions will present administrative problems for federal habeas courts. Most of the Circuits have recognized such claims for years, and the lower courts have experienced no more difficulty assessing plea-bargaining ineffective assistance of counsel claims than similar claims regarding trial performance

A Reply to Michael Goldsmith

I am grateful for Professor Michael Goldsmith\u27s response to my discussion of RICO. It is always gratifying to find that one\u27s writings have stimulated thought and debate. Professor Goldsmith\u27s criticisms of my discussion come in three parts. First, he claims that I have misread the history of RICO\u27s adoption. Second, he objects to my criticisms of its scope. Third, he argues that the statute as now drafted serves prosecutorial purposes that would not be captured by the proposals I make for its replacement. Professor Goldsmith\u27s arguments are not persuasive