Structural Overdelegation in Criminal Procedure

69 Pages Posted: 20 Oct 2012 Last revised: 13 Aug 2013

Date Written: 2013


In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the Supreme Court’s hostility to protecting criminal procedure rights. Instead, it arises from a set of institutional pressures that, in combination, differentiate criminal procedure from other forms of constitutional decision-making.

By identifying the problem of structural overdelegation, this Article clears away much of the confusion that complicates normative debates about the Supreme Court’s criminal procedure decisions. Why does the Supreme Court so frequently grant discretionary authority to law enforcement institutions that other observers find untrustworthy? How can one tell whether the Court has granted “too much” discretion to law enforcement officials, and what does that phrase even mean? By turning attention to criminal procedure’s structure, this Article offers a framework for answering these questions, and for deepening our understanding of criminal procedure decision-making.

Keywords: criminal procedure, constitutional law, legal theory, delegation, deference, institutional analysis, doctrinal entrenchment

Suggested Citation

O'Rourke, Anthony, Structural Overdelegation in Criminal Procedure (2013). Journal of Criminal Law and Criminology, Vol. 103, 2013; SUNY Buffalo Legal Studies Research Paper No. 2013-016. Available at SSRN:

Anthony O'Rourke (Contact Author)

University at Buffalo Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics