1 See, e.g., Louis Kaplow & Stephen Shavell, Fairness versus Welfare (2001), ch. V.

2 C.H. Wellman, Procedural Rights, 20 Legal Theory 286 (2014).

3 This is one of the main themes of Larry Laudan, Truth, Error, and Criminal Law (2006).

4 As Fuller put it, one of the criteria of success of a legal order is “congruence between the rules as announced and their actual administration.” Lon Fuller, The Morality of Law (2d ed. 1969), at 39. It is impossible to assess a legal order's success in relation to this criterion of congruence without attending to factual accuracy in adjudication. This has been a recurrent theme in the evidence scholarship of Ronald J. Allen. See, e.g., Allen, Ronald J., Truth and Its Rivals, 49 Hastings L. Rev. 309, 319 (1998)Google Scholar; see also Paul Roberts & Adrian Zuckerman, Criminal Evidence (2d ed. 2010), at 19.

5 Wellman, supra note 2, at 87 n.2. See also Kaplow & Shavell, supra note 1, at 228 n.6.

6 Fuller, Lon, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978)CrossRefGoogle Scholar; Antony Duff, Lindsay Farmer, Sandra Marshall & Victor Tadros, 3 The Trial on Trial: Towards a Normative Theory of the Criminal Trial (2007); Ho, Hock Lai, Liberalism and the Criminal Trial, 32 Sydney L. Rev. 269 (2010)Google Scholar; Roberts & Zuckerman, supra note 4, at 18–22; T.R.S. Allen, The Sovereignty of Law (2013), ch. 5; Dyzenhaus, David, Process and Substance as Aspects of the Public Law Form, 74 Cambridge L.J. 284 (2015)CrossRefGoogle Scholar; Waldron, Jeremy, The Concept and the Rule of Law, 43 Georgia L. Rev. 1 (2008)Google Scholar. Thinkers of the left and of the right have often been hostile to this tradition, but see Christine Sypnowich, The Concept of Socialist Law (1990), especially ch. 3; Michael Oakeshott, On Human Conduct (1975), especially ch. 2.

7 This does not mean that private parties can have no role in enforcing the law, as in a so-called citizen's arrest or the execution of an Anton Piller order, but it does mean that when those private parties do so, they must be understood as exercising public power, not as acting strictly on their own behalf. See Thorburn, Malcolm, Justifications, Powers, and Authority, 117 Yale L.J. 1070 (2008)CrossRefGoogle Scholar.

8 The principal source for the account of the legal order sketched out in these two paragraphs is Immanuel Kant, The Metaphysics of Morals, in Practical Philosophy 353 (Mary Gregor ed. & trans. 1996), as explicated by Arthur Ripstein, Force and Freedom (2009).

9 T.R.S. Allen, supra note 6; Alon Harel, Why Law Matters (2014).

10 Amartya K. Sen, The Idea of Justice (2009), ch. 14.

11 Yu, Xingzhong, Legal Pragmatism in the People's Republic of China, 3 J. Chinese L. 39 (1989)Google Scholar; Prado, Mariana & Trebilcock, Michael, Path Dependence, Development, and the Dynamics of Institutional Reform, 59 U. Toronto L.J. 341 (2009)CrossRefGoogle Scholar.

12 I take this to be one of the messages of Fuller's celebrated account of legality. Fuller, supra note 4; see also Dyzenhaus, supra note 6.

13 That was one Marxist vision of how justice would operate under the highest phase of economic and social development. See, e.g., V.I. Lenin, The State and Revolution, in 2 Selected Works 238, 313 (1975).

14 E.g., Charkaoui v. Canada, 2007 SCC 9, para. 29; Henry Friendly, “Some Kind of Hearing”, 123 U. Pa. L. Rev. 1267, 1279–1287 (1975). See also Tom Bingham, The Rule of Law (2010), ch. 9.

15 See, e.g., John D. Jackson & Sarah J. Summers, The Internationalisation of Criminal Evidence (2012); D.J. Galligan, Due Process and Fair Procedures (1997), ch. 7. To take a non-European example, the Chinese Criminal Procedure Law officially adopts some of the same procedural values, though they are regularly disregarded in practice. See Jianfu Chen, Criminal Law and Criminal Procedure Law in the People's Republic of China (2013), ch. 3, and the relevant articles of the Criminal Procedure Law: art. 5, independent tribunal (id. at 264); art. 11, accused's right of defense (id.); art. 35, right of defense counsel to present evidence (id. at 270); art. 195, tribunal's decision to be rendered in accordance with the law and the facts (id. at 312).

16 U.S. Const., amend. I.

17 Wellman, supra note 2, at 306.

18 Departures from the third and fourth elements are also likely to raise suspicions that the tribunal is not impartial.

19 The argument that a reviewing court should take a deferential attitude toward the public official who made the decision being reviewed often carries with it some resonance of this kind of claim, but the better argument for deference is that there is some reason why the official is better placed to interpret and apply the law than the reviewing court. The argument for deference is not always wrong, but the reasons for deference, and indeed the content of the concept of deference itself, are always themselves at issue. See, e.g., the discussion in David Dyzenhaus, The Politics of Deference: Judicial Review and Democracy, in The Province of Administrative Law 279 (Michael Taggart ed., 1997).

20 Fuller, supra note 4, at 81–94.

21 See, e.g., In re Winship, 397 U.S. 358 (1970).

22 See, e.g., R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, rejecting a constitutional challenge to the requirement that the accused disprove fault by establishing the defense of due diligence for regulatory offenses; Attorney General v. Hui Kin-hong, [1995] 1 H.K.C.L.R. 227, rejecting a quasi-constitutional challenge to a requirement that to avoid conviction for a certain anti-corruption offense, an accused public servant must provide the court with “a satisfactory explanation” of a fact that the prosecution has proved.

23 Wellman, supra note 2, at 287 n.3. For a response to Wellman's claim that is different from (though not inconsistent with) mine, see N.P. Adams, Grounding Procedural Rights, 25 Legal Theory 3 (2019).

24 Wellman, supra note 2, at 290.

25 Id. at 291.

26 Id. at 290 n.4.

27 Id.

28 “Punishment … is by its nature exacted for something (viz. for some wrong or supposed wrong).” Gardner, John, What Is Tort Law For? Part 1. The Place of Corrective Justice, 30 Law & Phil. 1, 7 (2011)CrossRefGoogle Scholar. See also James Edwards, Criminalization Without Punishment, 23 Legal Theory 69, 71 (2017).

29 On the difference between being chosen and being picked, see Ullmann-Margalit, Edna & Morgenbesser, Sidney, Picking and Choosing, 44 Social Research 757 (1977)Google Scholar.

30 I think this is a contradiction in terms, but it is the essence of Wellman's claim.

31 Wellman, supra note 2, at 291. For Wellman's account of punishment, see Wellman, C.H., The Rights Forfeiture Theory of Punishment, 122 Ethics 371 (2012)CrossRefGoogle Scholar. In this paper, I do not explicitly consider that account, but if it implies that we must accept the Sandra example, then I would have to reject it.

32 Though a finding of guilt in criminal proceedings can have a powerful effect in private law proceedings concerning the same facts. See, e.g., Toronto (City) v. CUPE, Local 79, 2003 SCC 63; F.(K.) v. White, 198 D.L.R.4th 541 (Ont. 2001). And in some legal systems, an alleged victim can be a party to the criminal proceedings and obtain a remedy directly through those proceedings.

33 In recent decades, legislatures have been busy inventing new consequences flowing from penal liability, which affect the freedom of the person convicted but, strangely, are sometimes not considered “punishment” and so are not subject to legal restraints on punishment that would otherwise govern them: civil commitment, offender registration, DNA collection, weapons prohibitions, deprivation of voting rights, and so forth. See, most notoriously, Kansas v. Hendricks, 521 U.S. 346 (1997), but also (with far less drastic consequences for the offender's freedom) R. v. Rodgers, 2006 SCC 15. For further discussion, see Zachary Hoskins, Beyond Punishment? A Normative Account of the Collateral Consequences of Conviction (2018).

34 Stewart, Hamish, The Right to Be Presumed Innocent, 8 Crim. L. Phil. 407 (2014)Google Scholar.

35 Wellman, supra note 2, at 288.

36 Kepner v. United States, 195 U.S. 100 (1904); Ball v. United States, 163 U.S. 662 (1896). (Some rulings that inevitably lead to acquittal (such as suppression of unconstitutionally obtained evidence) can nevertheless be appealed by the prosecution.) Laudan devotes a chapter to criticizing this doctrine (Laudan, supra note 3, at 194–220). His points are well taken, as far as they go. They do not go so far as showing that there is no right to finality.

37 See Martin L. Friedland, Double Jeopardy (1969), at 281. The current version of this right of appeal is found in the Criminal Code, R.S.C. 1985, c. C-46, s. 676(1)(a), (2).

38 Notably, the special pleas of autrefois convict and autrefois convict. Friedland, supra note 37, ch. 5.

39 Canadian Charter of Rights and Freedoms, §11(h).

40 R. v. Morgentaler, [1988] 1 S.C.R. 30, 155–156.

41 Criminal Justice Act 2003, Part 10.

42 Id. §76(3).

43 Id. §76(4)(c).

44 Id. §78(1). “Compelling evidence” is defined in §78(3). If the order is made, the acquitted person has a right of appeal to the Supreme Court of the United Kingdom. Id., §80.

45 Id. §76(5).

46 Wellman, supra note 2, at 288; compare Friedland, supra note 37, at 1–2.

47 Id. at 287.

48 For some thoughts on the different ways in which law can be understood as “instrumental,” see Stewart, Hamish, The Place of Instrumental Reasoning in Law, 11 Jurisprudence 28 (2020)CrossRefGoogle Scholar, https://doi.org/10.1080/20403313.2019.1658450.

49 Harel, Alon, The Duty to Criminalize, 34 Law & Phil. 1 (2015)Google Scholar; Thorburn, Malcolm, Punishment and Public Authority, in Criminal Law and the Authority of the State 7 (Antje du Bois-Pedain, Magnus Ulväng & Petter Asp eds., 2017)Google Scholar.

50 Ripstein, Arthur, Means and Ends, 6 Jurisprudence 1 (2015)Google Scholar; with respect to procedural rights in particular, see Duff, Antony, Farmer, Lindsay, Marshall, Sandra & Tadros, Victor, Towards a Normative Theory of the Criminal Trial, in 1 The Trial on Trial 20–26 (2004)Google Scholar.

51 Worries about whether we can speak of “what actually happened” in this context are nicely deflected by Damaška, Mirjan, Truth in Adjudication, 49 Hastings L.J. 289 (1998)Google Scholar; see also R.J. Allen, supra note 4.

52 The common law rule against hearsay, including its exceptions and its statutory reform, has been a perpetual battleground over this kind of question, at least since the decision of the House of Lords in Myers v. D.P.P., [1965] A.C. 1001.

53 See, among many others, Brandon Garrett, Convicting the Innocent (2011), ch. 2; Stewart, Hamish, The Confessions Rule and the Charter, 54 McGill L.J. 517 (2009)Google Scholar; Roach, Kent, Wrongful Convictions in Canada, 80 U. Cincinnati L.R. 1465 (2012)Google Scholar; Na Jiang, Wrongful Convictions in China (2016), ch. 3.

54 See also Stewart, Hamish, Concern and Respect in Procedural Law, in The Legacy of Ronald Dworkin 373 (Wil Waluwchow & Stefan Sciaraffa eds., 2016)CrossRefGoogle Scholar; Alex Stein, Foundations of Evidence Law (2005), at 172–173; Wellman, supra note 2, at 288. For the statistician's loss function, see Alexander M. Mood, Franklin A. Graybill & Duane C. Boes, Introduction to the Theory of Statistics (3d ed. 1974), at 414–418.

55 William Blackstone, 4 Commentaries on the Laws of England (1769), at 352. See also Roberts & Zuckerman, supra note 4, at 251, where this consideration is related to the probability of wrongful conviction rather than to the disvalue attached to a wrongful conviction.

56 That was also Fuller's guess. Fuller, supra note 6, at 382–385.

57 For a meta-analysis, see Vrij, Aldert, Fisher, Lorraine Hope & Ronald P., Eliciting Reliable Information in Investigative Interviews, 1 Policy Insights from the Behavioral and Brain Sciences 129 (2014)CrossRefGoogle Scholar. See also Garrett, supra note 53, ch. 2.

58 Another point emphasized in R.J. Allen's work. See, e.g., Allen, Ronald J., Complexity, the Generation of Legal Knowledge, and the Future of Litigation, 60 UCLA L. Rev. 1384 (2013)Google Scholar.

59 The same is true of the weights attached to Type I and Type II errors in the statistician's loss function. Statisticians therefore leave this problem for others to resolve: “We do not consider the problem of selecting an appropriate loss function ….” Mood, Graybill & Boes, supra note 54, at 415.

60 Even if we knew what the error rates were, it is unlikely that we could reverse-engineer the outcomes of our procedures to discover the trade-off as it is embedded in our practice because the reverse-engineering problem would probably have so many variables that the solution would likely be underdetermined by the data; in any event, we don't know the error rates either.

61 A point made long ago by Ronald Dworkin, Principle, Policy, Procedure, in A Matter of Principle 72, 87 (1985); see also discussion by Bone, Robert G., Participation, Procedure, Rights, 90 Boston L. Rev. 1011 (2010)Google Scholar, and Stewart, supra note 54.

62 Protecting the right against self-incrimination was the central theme of Miranda v. Arizona, 384 U.S. 436 (1966); whether Miranda and its successors have in fact improved the protection of this right is a contentious question that I will not take on here. For a discussion of different ways of relating the common law confessions rule to Canadian constitutional norms, see Stewart, supra note 53. See also Jackson & Summers, supra note 15, at 266–273.

63 Laudan, supra note 3, at 194–220.

64 Or, whatever institution exercises the power to make procedural rules.