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Full-Text Articles in Law

The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton Jul 2014

The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton

Faculty Scholarship at Penn Law

The book The Structure and Limits of Criminal Law (Ashgate) collects and reprints classic articles on three topics: the conceptual structure of criminal law doctrine, the conduct necessary and that sufficient for criminal liability, and the offender culpability and blameworthiness necessary and that sufficient for criminal liability. The collection includes articles by H.L.A. Hart, Sanford Kadish, George Fletcher, Herbert Packer, Norval Morris, Gordon Hawkins, Andrew von Hirsch, Bernard Harcourt, Richard Wasserstrom, Andrew Simester, John Darley, Kent Greenawalt, and Paul Robinson. This essay serves as an introduction to the collection, explaining how each article fits into the larger debate ...


Murder Mitigation In The Fifty-Two American Jurisdictions: A Case Study In Doctrinal Interrelation Analysis, Paul H. Robinson Apr 2014

Murder Mitigation In The Fifty-Two American Jurisdictions: A Case Study In Doctrinal Interrelation Analysis, Paul H. Robinson

Faculty Scholarship at Penn Law

The essay surveys the law in the fifty-two American jurisdictions with regard to the three doctrines that commonly provide a mitigation or defense to murder liability: common law provocation and its modern counterpart, extreme mental or emotional disturbance; the so-called diminished capacity defense and its modern counterpart, mental illness negating an offense element; and the insanity defense. The essay then examines the patterns among the jurisdictions in the particular formulation they adopt for the three doctrines, and the combinations in which those formulations commonly appear in different jurisdictions. After this review, the essay steps back to see what kinds of ...


A Systems Approach To Error Reduction In Criminal Justice, John Hollway Feb 2014

A Systems Approach To Error Reduction In Criminal Justice, John Hollway

Faculty Scholarship at Penn Law

The “systems approach” has been used, improved, and refined over time to improve safety and reduce errors in a variety of complex, high-risk industries, including health care, aviation, and manufacturing, among others. Such an approach targets the system for improvement rather than specific individuals within the system, and seeks to provide an environment that maximizes each participant’s ability to act safely and in a way that achieves the goals of the system. It prizes a non-punitive culture of disclosure to identify errors, gathers and applies data to understand the causes of the error, and tests systems changes to prevent ...


The Proper Role Of Community In Determining Criminal Liability And Punishment, Paul H. Robinson Jan 2014

The Proper Role Of Community In Determining Criminal Liability And Punishment, Paul H. Robinson

Faculty Scholarship at Penn Law

This essay argues that community views ought to have a central role in constructing criminal law and punishment rules, for both democratic and crime-control reasons, but ought not to have a role in the adjudication of individual cases. The differences in the American and Chinese debates on these issues are examined and discussed.


Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister Jan 2014

Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister

Faculty Scholarship at Penn Law

A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral credibility ...


Commentary: Reflections On Remorse, Stephen J. Morse Jan 2014

Commentary: Reflections On Remorse, Stephen J. Morse

Faculty Scholarship at Penn Law

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.


The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson Jan 2014

The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson

Faculty Scholarship at Penn Law

This paper reviews the various ways in which an offender's mental illness can have an effect on liability and offense grading under American criminal law. The 52 American jurisdictions have adopted a variety of different formulations of the insanity defense. A similar diversity of views is seen in the way in which different states deal with mental illness that negates an offense culpability requirement, a bare majority of which limit a defendant's ability to introduce mental illness for this purpose. Finally, the modern successor of the common law provocation mitigation allows, in its new breadth, certain forms of ...


Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player Jan 2014

Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player

Faculty Scholarship at Penn Law

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges ...


Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Jonathan Klick, Murat C. Mungan Jan 2014

Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Jonathan Klick, Murat C. Mungan

Faculty Scholarship at Penn Law

No abstract provided.


Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky Jan 2014

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

Faculty Scholarship at Penn Law

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to ...