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Important new paper on modern criminal procedure

By Douglas A. Berman

Though it apparently has been on SSRN for a little while, I just found my way to this abstract and draft of Professor David Alan Sklansky's new paper titled "Anti-Inquisitorialism."  Here is one part of the abstract that highlights why this piece is my latest must-read: This article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American jurisprudence. The descriptive part of the article focuses on four particularly striking examples of anti-inquisitorialism at work: the Supreme Court's recent reinterpretation of the Confrontation Clause; the Court's invalidation of mandatory sentencing schemes that rely on facts found by the trial judge; the Court's endorsement of procedural default rules rejected by the International Court of Justice; and the longstanding, rhetorical invocation of the inquisitorial system in the law of interrogations and confessions...continue to full post

Full post as published by Sentencing Law and Policy on November 17, 2008 (boomark / email).