CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, March 28, 2014

Ouziel on Legitimacy and Federal Criminal Enforcement Power

Lauren M. Ouziel (Villanova University - School of Law) has posted Legitimacy and Federal Criminal Enforcement Power (Yale Law Journal, Vol. 123, Forthcoming) on SSRN. Here is the abstract:

A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums. All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty. But why do such disparities exist? Conventional explanations point to differences among sovereigns’ legal rules, resources and dockets. These understandings, while valid, neglect to account for a less tangible source of federal criminal power: legitimacy. “Legitimacy” refers to the concept, refined through decades of empirical research, that citizens comply with the law, and defer to and cooperate with legal authority, when they perceive both the laws and the authorities to be fair. A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal power. Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.

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