Law Commons^™

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Law

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …

Judicious Imprisonment, Gregory Jay Hall

All Faculty Scholarship

Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and …

Defending Honor And Beyond: Reconsidering The Relationship Between Seemingly Futile Defense And Permissible Harming, Kimberly Kessler Ferzan

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In Helen Frowe's book, Defensive Killing, she argues that some cases of seemingly futile self-defense are actually instances of justifiable defense of the victim's honor. This paper explores Frowe's claim, first by isolating the central cases and then by examining her rejection of punitive reasons. From there, the paper examines Frowe's understanding of "defense of honor," ultimately suggesting that Frowe's conception is best construed as action that has expressive, but not defensive, value. From there, I turn to two more general puzzles. First, what if the defender mistakenly believes that she can successfully defend and acts for that reason, …

Arguing With Friends, William Baude, Ryan D. Doerfler

All Faculty Scholarship

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive …

Our Principled Constitution, Mitchell N. Berman

All Faculty Scholarship

Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …

Consent And Coercion, Kimberly Kessler Ferzan

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There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari’s behavior on a date. Whereas some commentators condemned Ansari’s behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent.

This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the …

Findlay Stark, Culpable Carelessness: Recklessness And Negligence In The Criminal Law, Cambridge: Cambridge University Press, 2016, Kimberly Kessler Ferzan

All Faculty Scholarship

Culpable Carelessness by Findlay Stark is a careful and considered contribution to the 'punishment for negligence' debate. As well as providing a comprehensive overview of the doctrinal and theoretical aspects of recklessness and negligence in the criminal law, it also offers novel insights for scholars already steeped in these debates. An additional methodological strength is that Stark takes seriously the connection between theory and law, offering useful potential jury instructions on recklessness and negligence.

Probing The Depths Of The Responsible Corporate Officer's Duty, Kimberly Kessler Ferzan

All Faculty Scholarship

Many criminal law scholars have criticized the Responsible Corporate Officer Doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the Responsible Corporate Officer Doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, …

Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan

All Faculty Scholarship

Many retributivists maintain that when a defendant commits an offense, (1) the defendant forfeits rights against punishment and (2) it is intrinsically good for the defendant to get the punishment he deserves. Self-defense theorists often maintain that when certain conditions are met, (1) an aggressor forfeits his rights against defensive force and (2) the aggressor may be harmed instrumentally to prevent his attack. In the context of a symposium on Uwe Steinhoff’s "Just War Theory," this paper examines the intersection of defense and desert. First, may desert and defense be aggregated when, for instance, the amount of harm that is …

Patty Hearst Reconsidered: Personal Identity In The Criminal Law, Kimberly Kessler Ferzan

All Faculty Scholarship

In this contribution to a symposium celebrating Joshua Dressler, I revisit the Dressler/Delgado debate over Patty Hearst through the prism of personal identity. After reviewing why personal identity presents a problem for punishment, I discuss how a "personal identity" defense would fit within the criminal law, including when it would undermine status responsibility, when it would undermine a voluntary act, and when it would serve as an excuse.