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46 Hastings L.J. 1175 (1994-1995)


My basic point is that major aspects of systems of legal justice deal with antisocial behavior. That an aspect of these systems may be categorized as “criminal,” “civil,” “state,” “federal,” or “international,” is relevant principally to a question of legal theory or governmental organization, which is fundamentally secondary to the character of the behavior itself. In short, we have to look at the behavior first–and only then ask questions of legal theory or governmental organization.

We should not be talking about “federalization.” That is a constitutional question to which we now have a fairly clear constitutional answer. Little or no need presses on us to debate it anew. Here we need only turn to the history of lotteries in the nineteenth century, which amply demonstrates that our federal and state systems of criminal justice are not–as the “federalization” question tends uncritically to assume–mutually exclusive. In fact–if not in theory–they exercise “concurrent jurisdiction” today over most forms of antisocial behavior–at least on the domestic side. The nation needs lawyers who read more than law reports; its needs can be more easily seen by reading newspapers. If we want to make a meaningful evaluation of our federal system of criminal justice, we ought to focus most sharply on asking, for example, if it is adequately responding to those forms of international antisocial behavior that only it has the legal and other resources to meet.


Reprinted with permission of Hastings Law Journal.

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