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Legal and Non-Legal Voluntariness: A Rejoinder to Wertheimer

Published online by Cambridge University Press:  01 July 2024

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I argued in the paper that has given rise to this exchange (1982) that Wertheimer failed to distinguish between two questions: (A) Are negotiated pleas involuntary in a sense that renders them legally invalid? and (B) Are negotiated pleas entered involuntarily in a sense that justifies the abolition of plea bargaining as a matter of social policy? In his reply, Wertheimer agrees that he failed to make this distinction but disputes its importance. He offers two reasons for minimizing its significance: (1) That to decide (A) judges must decide “questions of social and political morality”; and (2) that the structure of the concept of voluntariness is the same in both (A) and (B). I will argue that (1) is false and that (2) is not true in any interesting sense.

Type
Commentary and Debate
Copyright
Copyright © 1983 The Law and Society Association.

References

References

AMERICAN LAW INSTITUTE (1932) Restatement of Contracts. St. Paul, MN: West Publishing.Google Scholar
PHILIPS, Michael (1982) “The Question of Voluntariness in the Plea Bargaining Controversy: A Philosophical Clarification,” 16 Law & Society Review 207.Google Scholar
WERTHEIMER, Alan (1983) “Legal and Extra-Legal Voluntariness: A Reply to Philips,” 17 Law & Society Review 637.Google Scholar

Cases Cited

Garrity v. New Jersey, 385 U.S. 493, 1967.Google Scholar
Haynes v. Washington, 373 U.S. 503, 1963.Google Scholar
Kaplan v. Kaplan, 25 Ill. 2d 181, 1962.CrossRefGoogle Scholar