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Abstract

The urban misdemeanor process relies on a wide variety of informal groupings and aggregations. Order maintenance police arrest large numbers of people based on neighborhood, age, race, and other generalizations. Prosecutors and public defenders resolve entire classes of minor plea bargains based on standard local practices and pricing. Urban courts process hundreds of cases en masse. At each stage, the pressure to aggregate—to treat people and cases by group—weakens and sometimes eliminates individuated scrutiny of defendants and the evidence in their cases; people are largely evaluated, convicted, and punished by category and based on institutional habit. This wholesale process of creating criminal convictions in the aggregate is in deep tension with core precepts of criminal law, most fundamentally the idea that criminal guilt is an individuated concept reflecting the defendant’s personal culpability. This Article traces the influence of different sorts of aggregation through each step of the urban misdemeanor process, demonstrating how that process has effectively abandoned the individuated model of guilt and lost many of the essential characteristics of a classic “criminal” system of legal judgment. It then explores civil scholarship’s insights into the substantive power that informal aggregations can exert over liability rules and outcomes, in particular how mass settlement scenarios can generate no-fault liability regimes with high risks of fraud. The Article concludes that the misdemeanor system as it currently stands does not function as a traditional “criminal” system of judgment in large part because aggregation erodes the substantive content of criminal convictions.

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