Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this “rulification” of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the debate between sentencing reformers and their critics is a paradigmatic illustration of the limits of relying upon modifications of legal form to enhance substantive justice. Building upon the work of legal theorists who have considered the rules versus standards conundrum, this article uses sentencing law as a lens to view some of the fundamental perplexities that bedevil law’s grander aspirations—for determinacy, fairness, even coherence itself. Because, it is argued, refinements in legal form will never achieve the substantive goals to which law strives, the Essay urges a turn away from formal equality and toward a conception of sentencing justice that is centered on process values such as respect for those affected by sentencing decisions, concern that all voices be adequately heard, and decision making that reflects the considered moral judgment of the decision maker.
The California Law Review is delighted to honor Herma Hill Kay, path-breaking scholar, teacher, and leader, and recipient of the Association of American Law Schools’ Section on Women in Legal Education Lifetime Achievement Award. Professor Kay’s commitment to Berkeley, the legal academy, and the cause of women’s social progress continues to this day. This festschrift […]
This Note applies social identity threat literature to the legal context in order to improve access to justice. Social identity threat literature indicates that stereotypes, associations, and similar methods center environments on particular identities. Social identity threat occurs when an individual who does not have the centered identity enters the environment, implicitly perceives marginalization, and […]
In 2013, the United Nations General Assembly adopted a stand-alone resolution tackling the international problem of child marriage for the first time. Such a historic gesture by the international community was a welcome step, but not necessarily a surprise. Efforts to promote women’s empowerment have rapidly gained traction on the international stage in recent years, […]
This Article explores the phenomenon of organized copwatching—groups of local residents who wear uniforms, carry visible recording devices, patrol neighborhoods, and film police- citizen interactions in an effort to hold police departments accountable to the populations they police. The Article argues that the practice of copwatching illustrates both the promise of adversarialism as a form […]
Which classes are considered suspect under equal protection doctrine? The answer determines whether courts will defer to legislatures and other government actors when they single out a group for special burdens or intervene to protect that group from such treatment. Laws burdening suspect classes receive the strictest scrutiny possible and, under current doctrine, whether a […]
Good faith purchasers for value—individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality—have long obtained special protection under the common law. Despite the seller’s own actions being tainted, these purchasers obtain valid title and are free to transfer the property without […]