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Hofstra Law Faculty Scholarship
And Inspection of Miscellaneous Commercial Sectors; Ethyl Alcohol Manufacturing; Criminal law -- United States; Risk assessment -- Social aspects; State statutes (United States); Criminal law; Criminalization; Public choice; Legislative deliberation; Risk -- Social aspects
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Abstract Risk And The Politics Of The Criminal Law, Brenner M. Fissell
Abstract Risk And The Politics Of The Criminal Law, Brenner M. Fissell
Hofstra Law Faculty Scholarship
Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk. Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk. What these defenses implicitly assume, though, is that the entity the individual must …