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Articles 1 - 17 of 17
Full-Text Articles in Law
Exacerbating Injustice, Stephanos Bibas
Exacerbating Injustice, Stephanos Bibas
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This brief essay responds to Josh Bowers' argument that criminal procedure should openly allow innocent defendants to plead guilty as a legal fiction. Though most scholars emphasize the few but salient serious felony cases, Bowers is right to refocus attention on misdemeanors and violations, which are far more numerous. And though the phrase wrongful convictions conjures up images of punishing upstanding citizens, Bowers is also right to emphasize that recidivists are far more likely to suffer wrongful suspicion and conviction. Bowers' mistake is to treat the criminal justice system as simply a means of satisfying defendants' preferences and choices. This …
The Immigration Paradox: Alien Workers And Distributive Justice, Howard F. Chang
The Immigration Paradox: Alien Workers And Distributive Justice, Howard F. Chang
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The immigration of relatively unskilled workers poses a fundamental problem for liberals. While from the perspective of the economic welfare of natives, the optimal policy would be to admit these aliens as guest workers, this policy would violate liberal ideals. These ideals would treat these workers as equals, entitled to access to citizenship and to the full set of public benefits provided to citizens. If the welfare of incumbent residents determines admissions policies, however, and we anticipate the fiscal burden that the immigration of the poor would impose, then our welfare criterion would preclude the admission of relatively unskilled workers …
Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson
Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson
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The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment -- referred to variously as desert, just punishment, retributive punishment, or simply doing justice -- may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code's provisions. Indeed, …
Guest Workers And Justice In A Second-Best World, Howard F. Chang
Guest Workers And Justice In A Second-Best World, Howard F. Chang
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This essay offers a defense of guest-worker programs and a critique of the objections raised by Michael Walzer and by other critics of such programs. Although critics commonly complain that guest workers are vulnerable to exploitation by employers, we can design guest-worker programs that minimize the risk of such exploitation. Ready access for relatively unskilled guest workers to citizenship and to public benefits, however, generates a fiscal burden for the public treasury. A right to equal treatment for aliens yields perverse results unless aliens are also entitled to equal concern when the host country decides whether to admit the alien …
The Practice Of Teaching, The Practice Of Law: What Does It Mean To Practice Responsibly?, Howard Lesnick
The Practice Of Teaching, The Practice Of Law: What Does It Mean To Practice Responsibly?, Howard Lesnick
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No abstract provided.
Self-Defense And The State, Kimberly Kessler Ferzan
Self-Defense And The State, Kimberly Kessler Ferzan
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This article is a contribution to a symposium honoring Sandy Kadish. This article seeks to explore whether and to what extent our understanding of self-defense depends upon a citizen's relationship with the state. Part II begins by setting forth Professor Kadish's claim that self-defense is "a right to resist aggression" that is held by a citizen against the state. After contending that such an account is insufficient to justify self-defense, the remainder of the article seeks to explore the relationship between the state and self-defense. Part III argues that self-defense is a pre-political moral right, as opposed to a political …
Thoroughly Modern: Sir James Fitzjames Stephen On Criminal Responsibility, Stephen J. Morse
Thoroughly Modern: Sir James Fitzjames Stephen On Criminal Responsibility, Stephen J. Morse
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No abstract provided.
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
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The term “lifelog” refers to a comprehensive archive of an individual's quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the lifelog …
Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz
Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz
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What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the …
The Effect Of Conflicting Moral And Legal Rules On Bargaining Behavior: The Case Of Divorce, Tess Wilkinson-Ryan, Jonathan Baron
The Effect Of Conflicting Moral And Legal Rules On Bargaining Behavior: The Case Of Divorce, Tess Wilkinson-Ryan, Jonathan Baron
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No abstract provided.
Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas
Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas
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The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child …
Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker
Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker
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Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck occurs in the hypotheticals because (and to the extent that) two equally careless drivers are assessed differently because only one of them caused an accident. This article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the article explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the …
Punishment And Justification, Mitchell N. Berman
Punishment And Justification, Mitchell N. Berman
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Retributivist and consequentialist justifications for criminal punishment have contended for generations without either emerging the obvious victor. Indeed, although many commentators have recently announced a retributivist renaissance, it is perhaps more accurate to observe a growing scholarly attraction to "mixed" or "hybrid" theories. And yet most extant mixed theories strike many as unsatisfactory for either of two reasons. The best known mixed theories assign retributivist arguments a too-marginalized role relative to their consequentialist competitors. Others, that avoid this perceived failing, lack hard edges: They assert that desert and good consequences are jointly necessary to the justification of punishment but offer …
The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang
The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang
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In this Article, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after tax incomes of the least skilled native workers. Policies to protect these native workers frol1'l immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages fel1'wle participation in the labor force. This burden runs contrary …
Determinism And The Death Of Folk Psychology: Two Challenges To Responsibility From Neuroscience, Stephen J. Morse
Determinism And The Death Of Folk Psychology: Two Challenges To Responsibility From Neuroscience, Stephen J. Morse
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No abstract provided.
The Economics Of International Labor Migration And The Case For Global Distributive Justice In Liberal Political Theory, Howard F. Chang
The Economics Of International Labor Migration And The Case For Global Distributive Justice In Liberal Political Theory, Howard F. Chang
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Estimates of the magnitude of the gains that the world could enjoy by liberalizing international migration indicate that even partial liberalization would not only produce substantial increases in the world’s real income but also improve its distribution. Although the economic effects of immigration on native workers and distributive justice among natives are often advanced as reasons to reduce immigration, these concerns do not provide a sound justification for our restrictive immigration laws. Instead, the appropriate response to concerns about the distribution of income among natives is to increase the progressivity of our tax system. Protectionist immigration policies are not only …
The Virtuous Spy: Privacy As An Ethical Limit, Anita L. Allen
The Virtuous Spy: Privacy As An Ethical Limit, Anita L. Allen
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Is there any reason not to spy on other people as necessary to get the facts straight, especially if you can put the facts you uncover to good use? To “spy” is secretly to monitor or investigate another's beliefs, intentions, actions, omissions, or capacities, especially as revealed in otherwise concealed or confidential conduct, communications and documents. By definition, spying involves secret, covert activity, though not necessarily lies, fraud or dishonesty. Nor does spying necessarily involve the use of special equipment, such as a tape recorder or high-powered binoculars. Use of a third party agent, such as a “private eye” or …