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Mediating Rules in Criminal Law


Richard A. Bierschbach


Yeshiva University - Benjamin N. Cardozo School of Law

Alex Stein


Yeshiva University - Benjamin N. Cardozo School of Law


Cardozo Legal Studies Research Paper No. 203
Virginia Law Review, Vol. 93, No. 101, 2007

Abstract:     
This Article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law's deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law's dominant animating theories - deterrence and retributivism - respond asymmetrically to the workings of those rules. We analyze the features of "mediating rules," explore their effects across a range of substantive areas, and offer a tentative normative assessment of their role in a pluralistic criminal law system.

Number of Pages in PDF File: 60

Keywords: criminal law, deterrrence, retribution

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Date posted: September 17, 2007  

Suggested Citation

Bierschbach, Richard A. and Stein, Alex, Mediating Rules in Criminal Law. Cardozo Legal Studies Research Paper No. 203; Virginia Law Review, Vol. 93, No. 101, 2007. Available at SSRN: http://ssrn.com/abstract=1014398

Contact Information

Richard A. Bierschbach (Contact Author)
Yeshiva University - Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States
(212) 790-0352 (Phone)
(212) 790-0205 (Fax)
Alex Stein
Yeshiva University - Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States

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