Land Without Plea Bargaining: How the Germans Do It

The present Article demonstrates the error of this universalist theory of plea bargaining by showing how and why one major legal system, the West German, has so successfully avoided any form or analogue of plea bargaining in its procedures for cases of serious crime. The German criminal justice system functions without plea bargaining not by good fortune, but as a result of deliberate policies and careful institutional design whose essential elements are outlined in Part I. Part II addresses the American claims that a clandestine plea bargaining system lurks behind veils of German pretense

The Historical Origins of the Privilege Against Self-Incrimination at Common Law

The appearance of the privilege against self-incrimination - the guaranty that no person shall be compelled in any criminal case to be a witness against himself - was a landmark event in the history of Anglo-American criminal procedure. Prior historical scholarship has located the origins of the common law privilege in the second half of the seventeenth century, as part of the aftermath of the constitutional struggles that resulted in the abolition of the courts of Star Chamber and High Commission. This essay explains that the true origins of the common law privilege are to be found not in the high politics of the English revolutions, but in the rise of adversary criminal procedure at the end of the eighteenth century. The privilege against self-incrimination at common law was the work of defense counsel

Why Did Trust Law Become Statute Law in the United States?

The Uniform Trust Code, the first national-level codification of the American law of trusts, was promulgated in 2000. The Code was the product of a five-year Uniform Law Commission drafting process that entailed extensive consultation with the trust and estates bar and the trust banking industry. The Code is being widely enacted. Eighteen states and the District of Columbia have thus far adopted it, and many others are likely to follow. Alabama\u27s enactment comes into effect in 2007. For the future, trust law in Alabama and the other Code states will be prevailingly statute law, although the principles developed in prior case law will continue to inform the interpretation and application of the Code. In one sense, the Code marks a great departure by codifying a previously uncodified field. In another sense, however, the Code is simply the latest step in a trend toward statutory intervention in American trust law that has been underway for decades. If we focus on the Uniform Laws, and I shall have more to say about why uniform legislation has so characterized the trust field, we can identify a steady progression of enactments from the 1930s onward

Reversing the Nondelegation Rule of Trust-Investment Law

The nondelegation rule has been a familiar feature of the doctrinal landscape of the Anglo-American law of trusts. In the formulation of the Restatement of Trusts (Second) of 1959, the rule places the trustee under a duty to the beneficiary not to delegate to others the doing of acts which the trustee can reasonably be required personally to perform. The nondelegation rule was thought to apply with particular force to the trustee\u27s investment responsibilities. The Restatement (Second) says flatly: A trustee cannot properly delegate to another power to select investments. The new Restatement of Trusts (Third): Prudent Investor Rule, completed in 1992, rejects the nondelegation rule of the 1959 Restatement. The 1992 Restatement-hereafter, Restatement (Third)-is a partial revision of the Restatement (Second), limited to matters bearing on trust-investment law. Not only does the Restatement (Third) approve delegation, it imposes upon the trustee a positive duty to act prudently in considering whether and how to delegate investment functions. A projected Uniform Prudent Investor Act (UPIA), scheduled for approval by the Uniform Law Commission in 1994, implements the prodelegation position taken in the Restatement (Third) and articulates standards for effective delegation. The changed attitude toward delegation that characterizes the Restatement (Second) and UPIA was foreshadowed across the previous decades in a series of influential enactments that endorsed the delegation of fiduciary investment responsibilities: the Uniform Trustees\u27 Powers Act in 1964, the Uniform Institutional Management of Funds Act (UMIFA) in 1972, and ERISA, the federal pension law, in 1974