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Daniel Epps

Bio: Daniel Epps is an academic researcher from Washington University in St. Louis. The author has contributed to research in topics: Supreme court & Criminal justice. The author has an hindex of 5, co-authored 14 publications receiving 72 citations.

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TL;DR: The Blackstone principle as discussed by the authors states that "better that ten guilty persons escape, than that one innocent suffer" is a revered adage in the criminal law, and that minimizing wrongful convictions is more important than overall accuracy.
Abstract: “Better that ten guilty persons escape, than that one innocent suffer” is a revered adage in the criminal law. It serves as shorthand for an important rule about punishment: minimizing wrongful convictions is more important than overall accuracy. This “Blackstone principle” accords with most people’s deeply felt intuitions about criminal justice. This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today. The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. The Article conducts that analysis, which reveals two significant but previously unrecognized drawbacks of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle’s putative benefits. The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical assertions, logical errors, or controversial normative premises. There is thus no fully persuasive justification for the principle. Rejecting the Blackstone principle would require us to rethink — although not necessarily redesign — various aspects of our criminal-procedure system.

24 citations

Posted Content
TL;DR: In this paper, the authors consider the principal-agent problem in public law, and explore three mechanisms that could, if used appropriately, minimize agency costs while still allowing the government the freedom to make important decisions or conduct sensitive operations in secret.
Abstract: The conflict between transparency and secrecy is a particularly stark instantiation of the principal-agent problem in public law. It is the province of institutional design to come up with effective means to ensure that government actors act in accordance with voters' desires. Much of the time, elections and other disciplining mechanisms (such as impeachment for judges and indirect political control for unelected members of the executive branch) deter official behavior that diverges too widely from voters' interests, at least over the long term. However, because these traditional incentive-alignment methods require political involvement by the public, they cannot prevent self-interested behavior by political actors if the voters have no way of learning about the malfeasance. Transparency seems essential from this perspective, since it allows voters to monitor the actions of their agents. Transparency and accountability are seen as inherently linked, and secrecy is considered by many to produce large agency costs. The main point of disagreement is where to determine the point at which government operations go from being "open" to being "closed" in order to strike a "balance" between secrecy and accountability.This Note explores alternatives to this dichotomous conception of secrecy and accountability. It considers the problem of secrecy and transparency from the perspective of the principal-agent relationship and advocates creative approaches that focus on reducing the total agency costs in the relationship between voters and their representatives. Toward that end, this Note explores three mechanisms that could, if used appropriately, minimize agency costs while still allowing the government the freedom to make important decisions or conduct sensitive operations in secret. This Note's goal is not to critique existing secrecy law systematically, nor to propose a feasible replacement system. Rather, it aims to explore new ways to think about the secrecy/transparency dilemma and to suggest that it is worth investigating mechanisms (including, but not limited to, the three suggested here) that capture as many of the benefits of secrecy as possible while minimizing agency costs.Part I evaluates secrecy and transparency in terms of the potential agency costs that each creates. Parts II, III, and IV each explore a different, potentially agency cost-minimizing mechanism of secrecy. Each Part describes the mechanism and its ideal implementation. Each Part also investigates two examples of the strategy in American law: one that is well designed in light of the preceding discussion of optimal implementation, and one that is more poorly designed. Part II explores proxy monitoring, in which one governmental actor (or other third party) polices another governmental actor's use of secrecy. Part III examines bottom-line disclosure, in which the public is allowed to monitor the performance of the government, but only along a specified "bottom line" metric. Part IV discusses delayed disclosure, in which the government is required to reveal its decisions or actions after a specified period of time.

11 citations

Journal ArticleDOI
TL;DR: In this article, the authors outline a new framework for Supreme Court reform and evaluate existing proposals and offer two of their own: the Supreme Court Lottery and the Balanced Bench, which are plausibly constitutional and thus implementable by statute.
Abstract: The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in serious jeopardy. Moreover, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further escalation that would leave the Court’s image and the rule of law badly damaged. The coming crisis can be stopped. But saving the Court’s legitimacy as an institution above politics will require a radical rethinking of how the Court has operated for more than two centuries. In this Feature, we outline a new framework for Supreme Court reform. Specifically, we argue for reforms that are plausibly constitutional (and thus implementable by statute) and that are capable of creating a stable equilibrium even if initially implemented using “hardball” tactics. Under this framework, we evaluate existing proposals and offer two of our own: the Supreme Court Lottery and the Balanced Bench. Whether policymakers adopt these precise proposals or not, our framework can guide their much-needed search for reform. We can save what is good about the Court—but only if we are willing to transform the Court.

9 citations

Journal ArticleDOI
TL;DR: In this paper, the authors estimate the size of the U.S. Supreme Court in a world in which the political parties engage in tit-for-tat court-packing.
Abstract: We estimate the size of the U.S. Supreme Court in a world in which the political parties engage in tit-for-tat court-packing. We do so by assuming that the Supreme Court is immediately expanded by four members and that future presidents who court-pack would add enough seats to ensure that a simple majority of justices were appointed by their party. In a series of simulations, we find that median result of repeated partisan court-packing would be to increase the size of the Court to 23 justices within 50 years and to 39 justices within 100 years. We also study the incentives for justices to retire strategically in a world with repeated partisan court-packing and the resulting effects of changes in strategic retirement on the size the Court. We find that court-packing would decrease the incentives for strategic retirement, but we also find that changes in justices’ retirement decisions would have little effect on the eventual size of the Court. By outlining the assumptions required to study this topic and estimating the impact different parameters would have on court expansion, we hope to generate more careful reflection on the potential consequences of this type of judicial reform.

5 citations


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TL;DR: In this paper, the authors investigate how third-party punishers and potential violators decide under evidentiary uncertainty in a take-game, and they find that neither the sanction nor the harm level affects the punishment probability, but the quality of evidence does have an impact.
Abstract: We investigate how third-party punishers and potential violators decide under evidentiary uncertainty in a take game. In line with the legal requirement and in contrast to economic models, neither the sanction nor the harm level affects the punishment probability, but the quality of evidence does have an impact. Potential violators' decisions are strongly influenced by the expected punishment probability but not by the level of the sanction.

101 citations

Posted Content
01 Jan 2006
TL;DR: In this paper, a three-stage model isolates conditions under which an executive appointment to a collective choice body, such as a court or a regulatory agency, has an immediate bearing on policy.
Abstract: A three-stage model isolates conditions under which an executive appointment to a collective choice body, such as a court or a regulatory agency, has an immediate bearing on policy. The model strikes a balance between previous formal models that predict either excessive gridlock or excessive policy responsiveness as a consequence of the politics of appointments. I test the model using approximately four decades of data on U.S. Supreme Court appointments. Two hypotheses summarize the unique predictions of the model and are strongly corroborated. A third, less distinctive hypothesis about strategic judicial retirements is weakly supported.

40 citations

Posted Content
TL;DR: In this article, the authors discuss the dynamics of shared political accountability and provide a supply and demand-side analysis of disaster management and provide suggestions for further avenues of empirical and theoretical research on this new positive political theory of horizontal political externalities.
Abstract: This Article discusses the dynamics of shared political accountability and provides a supply- and demand-side analysis of disaster management. Because multiple levels of government share political accountability in national scale disasters, disaster management is subject to a collective action problem. Introducing the concept of horizontal political externalities, this Article explains the shortcomings of disaster management in terms of asymmetric political accountability costs for ex ante preparedness and ex post relief. In the presence of shared accountability, investments in prevention and relief by one government actor confer positive externalities upon other government actors by reducing the overall chance of being held responsible in ensuing disasters. In contrast, ex post disaster relief involves negative externalities when action by one agency makes other agencies or representatives look worse. Because positive externalities are undersupplied and negative externalities are oversupplied, political externalities distort disaster management policy. When political accountability is shared, no single actor bears the full brunt of accountability. In addition, uncertainty and finger pointing reduce the total sum of political accountability. The different effects of ex ante and ex post disaster management on political accountability may shed light on events before and after Hurricane Katrina. I provide suggestions for further avenues of empirical and theoretical research on this new positive political theory of horizontal political externalities and political accountability losses.

40 citations

Journal ArticleDOI
TL;DR: In this article, a 23-criteria fiscal transparency index for the citizen user (FTI-CU) was developed and applied to a sample of popular annual financial reports and citizen-centric reports issued by local governments in the U.S.
Abstract: Popular financial reports (PFRs) are intended to increase transparency by providing financial information to a non-technical, citizen audience. We examine the extent to which PFRs are meeting the goal of transparency by developing a 23-criteria fiscal transparency index for the citizen user (FTI-CU) and applying it to a sample of PFRs (popular annual financial reports and citizen-centric reports) issued by local governments in the U.S. These criteria are organized into five areas: comprehension, access, financials, appearance, and community-focused. The analysis finds that, while there are areas for improvement, the PFRs rated the highest in the access and appearance criteria.

30 citations

Posted Content
TL;DR: In this paper, the authors compare the composition of the plenary docket during the three most recent Terms (1993 through 1995) with the docket 10 years earlier using these data, test five hypotheses that have achieved special prominence, including some that have been endorsed by one or more Justices.
Abstract: From 1971 through 1988, the United States Supreme Court was hearing and deciding about 150 cases each Term Since the mid-1990s, however, the number of plenary decisions each Term has generally ranged between 75 and 85 How can we explain the shrunken docket? To answer that question, we must identify the changes that have taken place in the cases selected for plenary review and analyze them in a systematic fashion In this article, I compare the composition of the plenary docket during the three most recent Terms (1993 through 1995) with the docket 10 years earlier Using these data, I test five hypotheses that have achieved special prominence, including some that have been endorsed by one or more Justices They are:1 The virtual elimination of the Supreme Court's mandatory appellate jurisdiction allows the Court to deny review in some cases that would have received plenary consideration under the pre-1988 regime2 After the retirement of its three most liberal Justices, the Court took fewer cases in which lower courts had upheld convictions or rejected civil rights claims3 Twelve years of Reagan-Bush judicial appointments brought greater homogeneity to the courts of appeals, resulting in fewer intercircuit conflicts that the Supreme Court had to resolve4 The Federal Government was losing fewer cases in the lower courts and therefore filed fewer applications for review in the Supreme Court5 The 12 years of Reagan-Bush appointments made the courts of appeals more conservative, resulting in fewer "activist" decisions of the kind that a conservative Supreme Court would choose to reviewNone of these hypotheses fully explains the shrunken docket Rather, the data suggest that the Justices who joined the Court starting in the mid-1980s took a narrower view of the Court’s role than did their predecessors The result is an “Olympian Court” that is often detached from the work of lower courts – an aloofness that poses a threat to the effective performance of the Court’s role in the American legal system

25 citations