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High-Stakes Interpretation, Ryan D. Doerfler

Michigan Law Review

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be “unambiguous” suddenly becomes “less than clear.” This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize “clear” or “unambiguous” meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to “know” what a text means—and, hence, more difficult to regard …

The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten

All Faculty Scholarship

There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”

The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority …

Four Distinctions That Glanville Williams Did Not Make: The Practical Benefits Of Examining The Interrelation Among Criminal Law Doctrines, Paul H. Robinson

All Faculty Scholarship

While Glanville Williams was a pioneer in his time, he remained quite mainstream when it came to the framework for organizing criminal law doctrines. His books were influential and he could have helped reshaped that framework but was content to leave it as essentially that which evolved at common law, even though many improvements could have be made. For example, he was well aware of the justification-excuse distinction but rejected it as an organizing principle, not because he did not see the distinction as rational, but because he did not see it as having practical value.

This essay attempts to …

Cute Prickly Critter With Presbyopia, Don Herzog

Reviews

Ronald Dworkin's' latest, long-awaited, and most ambitious book is a puzzle. Truth in advertising first: despite the title, this isn't centrally a book about justice. It's a book about the realm of value-all of that realm. Dworkin is most interested here in morality, but really touches on all of it, as a matter of the application of the abstract argument and sometimes in black and white right on the page, from aesthetics to prudence to morality to politics to law to . . . . It's fun to read, also frustrating. It stretches out lazily in handling some issues but …

Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan

All Faculty Scholarship

The use of the term, "self-defense, " covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, "I am going to kill you," the aggressor's behavior forfeits the aggressor's right against the defender's infliction of harm that is intended to repel the aggressor's attack. Because the right is forfeited, numbers do not count (the …

Taser Use: Report Of The Use Of Force Working Group Of Allegheny County, David A. Harris

Articles

The Use of Force Working Group was convened in October of 2008 to study police use of electronic control devices, better known as Tasers. Allegheny County (Pa.) District Attorney Stephen A. Zappala, Jr. appointed the Working Group in the wake of an incident in which a person died following a Taser exposure at the hands of local police officers.

This Report concludes that Tasers can be worthwhile and safe weapons in the police arsenal, but only if they are used consistent with proper policy, training, supervision and accountability. Anything less makes the use of these weapons a risky choice from …

Justice, Liability, And Blame: Community Views And The Criminal Law, Paul H. Robinson, John M. Darley

All Faculty Scholarship

This book reports empirical studies on 18 different areas of substantive criminal law in which the study results showing ordinary people’s judgments of justice are compared to the governing legal doctrine to highlight points of agreement and disagreement. The book also identifies trends and patterns in agreement and disagreement and discusses the implications for the formulation of criminal law. The chapters include:

Chapter 1. Community Views and the Criminal Law (Introduction; An Overview; Why Community Views Should Matter; Research Methods)

Chapter 2. Doctrines of Criminalization: What Conduct Should Be Criminal? (Objective Requirements of Attempt (Study 1); Creating a Criminal Risk …