Criminal Law’s "Mediating Rules": Balancing, Harmonization, or Accident?

Michael T. Cahill, Brooklyn Law School

Abstract

This brief response discusses Richard Bierschbach and Alex Stein's article, "Mediating Rules in Criminal Law," 93 Va. L. Rev. 1197 (2007). The response first points to the main article's contributions: it combats the tendency of theoretical work in criminal law to focus on certain criminal justice issues at the expense of others; and, by widening the scope of analysis, it expands the sense of what tools can be used, singly or in combination, to achieve fundamental criminal justice goals. Then the response notes the authors' seemingly ambivalent stance about the normative implications of their analysis. Finally, I raise two questions about the main article's scope and implications. First, might the "mediation" phenomenon occur with other procedural rules as well as with the evidentiary rules Bierschbach and Stein discuss? Second, is "mediation" is a zero-sum game, or might some combinations of substance and procedure be superior to others in advancing both retributive and utilitarian goals?