Legal History Commons^™

The 100-Plus Year Old Case For A Minimalist Criminal Law (Sketch Of A General Theory Of Substantive Criminal Law), Mike C. Materni

Mike C Materni

Criminal law defines the system of government of which it is the political expression; thus having a normative theory of substantive criminal law is paramount. U.S. criminal law has developed in the absence of such overarching theory, and is now plagued by overcriminalization. This article advances a model of a minimalist criminal law grounded on strong normative principles that are presented and defended not from the perspective of metaphysics or moral philosophy; but rather, in a historical and comparative perspective, as a matter of political choice. Core among those principles is the idea that in a liberal democracy the criminal …

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …