The Supreme Court and the Regulation of Risk in Criminal Law

55 Pages Posted: 23 May 2014

Date Written: January 31, 2012


Criminal law enforcement raises numerous issues of risk regulation. Yet judicial treatment of such issues is anything but rigorous. This Article critically examines the Supreme Court's use of risk regulatory paradigms in the context of criminal law enforcement. It focuses on two such settings - police termination of a high-speed chase by putting a fugitive's life at risk and the sentencing of career criminals. This Article then argues why the Court's efforts are deficient and raises a more general question: Is the judiciary aptly positioned to conduct formal risk analysis in the criminal law context?

Keywords: Criminal law, Law enforcement, Environmental law, Risk Regulation, Risk-risk tradeoffs, Cost-benefit analysis, Risk analysis, Risk management

JEL Classification: K00, K14, K32

Suggested Citation

Nash, Jonathan, The Supreme Court and the Regulation of Risk in Criminal Law (January 31, 2012). Boston University Law Review, Vol. 92, No. 1, 2012, Emory Legal Studies Research Paper, Available at SSRN:

Jonathan Nash (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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