Truth and Innocence Procedures to Free Innocent Persons: Beyond the Adversarial System

Tim Bakken

Through innocent pleas and innocence procedures, this Article urges a fundamental change to the adversarial system to minimize the risk that factually innocent persons will be convicted of crimes. The current system, based on determining whether the prosecution can prove guilt beyond a reasonable doubt, results in acquittals of guilty persons when evidence is sparse and convictions of innocent persons when evidence is abundant. It might be easier philosophically to accept that guilty persons will go free than to know that some innocent persons will be convicted and imprisoned, especially in the American justice system where erroneous jury verdicts based on factual determinations are virtually never reversed. Thus, where defendants claim to be factually innocent, the adversarial system should provide for a plea of innocent, as opposed to only a not guilty plea, as well as innocence procedures through which to search for the truth of the prosecution's allegations. Innocence procedures would require the defendant and the prosecution to engage in a truth-seeking function. The prosecution would have to investigate with a view toward finding exculpatory evidence, rather than expecting the defendant to produce it. The defendant would have to submit to interrogation, and his attorney would have to affirm that the defendant is innocent. Jury instructions at trial would ensure that the prosecution and defendant acted in good faith, and where a defendant pleaded innocent, submitted to interrogation, and then still faced trial the prosecution would be required to prove guilt to a standard higher than beyond a reasonable doubt. By introducing a truth-seeking function into the adversarial system prior to trial, innocent persons would have a more realistic opportunity to save themselves, when in the current system their fates are virtually irrevocably sealed when a jury returns a guilty verdict.

Subordination and the Fortuity of Our Circumstances

Sergio J. Campos

The antisubordination principle exists at the margins of equality law. This Article seeks to revive the antisubordination principle by taking a fresh look at its structure and underlying justification. First, the Article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing antisubordination literature. Second, it argues for a theory of state obligation that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine associated with Charles Black. The Article argues instead that the antisubordination principle mandates affirmative action due solely to the existence of subordination, regardless of its causes. Third, the affirmative action required by the antisubordination principle requires preferential treatment that burdens innocent persons. Rather than defend affirmative action on past discrimination or diversity grounds, the Article argues that these sacrifices are justified given the arbitrary nature, or fortuity, of the circumstances into which we are born. Unlike John Rawls and other philosophers who have recognized this fortuity, but have argued that it only implicates what persons are entitled to, the Article instead argues that this fortuity provides the basis for a solidarity with those born into subordinated positions. Because anyone could have occupied positions of subordination but for the accident of birth, we all have reason to make reasonable sacrifices to end subordination.

The Terrorism Exception to Asylum: Managing the Uncertainty in Status Determination

Won Kidane

The Immigration and Nationality Act ("INA"), as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however, the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing scheme provides little help in screening out the real terrorists. The Article demonstrates these flaws and proposes some substantive and procedural modifications.

The Failing Company Defense After the Commentary: Let It Go

Oliver Zhong

This Note proposes the abolishment of the failing company defense in merger control law. This call for reform is based on a comprehensive critique, which consists of a revisit of the doctrinal history, a survey of problems in current practice, and an inquiry into the normative merits of both the status quo and alternative plans. The reform advocated will purify the doctrine and improve the practice with minimum adjustments, in line with the ongoing movement to modernize merger review with the publication of the Commentary to the Merger Guidelines.

Money as Property: The Effects of Doctrinal Misallocation on Campaign Finance Reform

Maneesh Sharma

By applying First Amendment jurisprudence to campaign finance measures, this Note argues that the Supreme Court has misallocated campaign finance within its doctrinal scheme. This doctrinal misallocation has stymied the ability of legislatures to enact effective reforms to reduce the role of money in politics. This Note argues that money in the political process more closely resembles property than speech and should therefore be analyzed under a less stringent property review. This Note concludes by proposing a standard of review developed from the Court's property jurisprudence.