Criminal Justice as Regulation

Criminal Justice as Regulation, New Criminal Law Review, Vol. 23, Number 1, pp. 113-138, 2020

26 Pages Posted: 13 Mar 2020

See all articles by Malcolm M. Feeley

Malcolm M. Feeley

University of California, Berkeley

Date Written: February 10, 2020


Justifications of problem-solving courts and restorative justice are much more than descriptions of alternatives to criminal courts. The best of them are anchored in full-blown theories of regulation that threatens to displace many of the traditional concerns of the criminal law, and replace them with a theory of regulation. Instead of concern with "law enforcement," concern shifts to "compliance." Harm reduction and restoration of social order replace concern with responsibility, and criminal liability; risk analysis replaces just deserts. Criminal courts have long embraced such ideas, but under the radar as it were. Now, new theories of problem solving courts and restorative justice bring these regulatory concerns to the fore, and in their more elaborated forms constitute full-blown regulatory theories that replace classical understanding of the criminal law and process. This conceptual shift raises two important issues. First, it is taking place without much self-conscious reflection about the transformation. Second, in the United States it is taking place in a woefully under-developed administrative state that is both weak and fragmented (and is especially so in the criminal process), so that the consequences of the new theory cannot be anticipated with any assurances.

Keywords: adjudication, administrative state, criminal courts, criminal law, polycentric problems, problem-solving courts, regulation, restorative justice, just deserts

JEL Classification: K10, K14, K22, K42

Suggested Citation

Feeley, Malcolm M., Criminal Justice as Regulation (February 10, 2020). Criminal Justice as Regulation, New Criminal Law Review, Vol. 23, Number 1, pp. 113-138, 2020, Available at SSRN:

Malcolm M. Feeley (Contact Author)

University of California, Berkeley ( email )

310 Barrows Hall
Berkeley, CA 94720
United States

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