Sunday, June 1, 2014
Jonathan Remy Nash (Emory University School of Law) has posted The Supreme Court and the Regulation of Risk in Criminal Law (Boston University Law Review, Vol. 92, No. 1, 2012) on SSRN. Here is the abstract:
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?