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

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