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Power Failures: Prosecution, Power, and Problems

Over the past three decades, the world has embraced the concept of the rule of law to an unprecedented extent. The phrase has become the touchstone of good government for people all over the world, from Harare to Hanoi, Kabul to Kinshasa, Lhasa to Lima, Tegucigulpa to Tashkent.

At the same time, however, the rule of law has been undermined in America in ways that have not been fully appreciated. Changes in the locus and dispersion of prosecutorial authority, increasingly numerous, complex, and malleable legal rules, and failing procedural checks on prosecutorial decisions have allowed prosecutors (along with other officials exercising prosecutorial authority) to impose drastic punishments on selected targets without constraints traditionally associated with the rule of law.

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