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Passion's Puzzle, Stephen P. Garvey

Cornell Law Faculty Publications

The puzzle of the provocation defense, otherwise known as the "heat of passion" defense, is to figure out how, if at all, each of the basic elements of the doctrine can be explained in a coherent and normatively attractive fashion. None of the prevailing theories of provocation succeeds in solving this puzzle. These theories either fail to explain one or more of the basic elements of the doctrine, or else end up committing the state to a decidedly illiberal course of action: punishing citizens not only for what they do (for their actions), but for who they are (for their …