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"The Prosecutor as Regulatory Agency"

By Douglas A. Berman

The title of this post is the title of this new piece by Professor Rachel Barkow that is available here via SSRN.  Here is the abstract: The simple account of America?s system of separated powers has legislators responsible for making laws, the executive branch (and prosecutors within it) charged with enforcing the laws, and judges with the power to adjudicate any disputes by declaring what the law commands. Two aspects of our modern government that have disrupted this paradigm ? judicial and agency policymaking ? have become scholarly obsessions. But there is another, equally strong challenge to the traditional separation-of-powers framework that has received far less attention: prosecutors who regulate. The constitutionally limited role of the prosecutor is to enforce the policies laid down in laws enacted by the legislature...continue to full post

Full post as published by Sentencing Law and Policy on July 24, 2009 (boomark / email).