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Professor Alex Stein presents ‘Constitutional Retroactivity in Criminal Procedure’.
Professor Alex Stein, of the Benjamin N. Cardozo School of Law, Yeshiva University, New York, gave a guest seminar in the School of Law’s Moot Room on Wednesday 20 April 2016, on the ‘Constitutional Retroactivity in Criminal Procedure’.
The paper attempted to explain the importance of the “watershed” doctrine established by the US Supreme Court a quarter-century ago despite the Supreme Court’s refusal to classify any procedural due process rule as a watershed, which would have allowed its applicability to offenders whose final appeals were exhausted prior to the announcement of the new constitutional rule.
According to Stein, using economic analysis of law, and more specifically, the dynamic concentration model of game theory, the threat of a future finding by the Supreme Court of a rule as watershed reins in the punitive tendencies of elected state judges who owe their jobs to voters seeking crime prevention more than the protection of defendants’ rights, and mandate sweeping retrials or the release of prisoners into the public. State courts attempt to prevent the Supreme Court from doing this by trying to align their procedures with watersheds they project the Court might announce in the future.