Law Commons^™

The 100-Plus Year Old Case For A Minimalist Criminal Law (Sketch Of A General Theory Of Substantive Criminal Law), Mike C. Materni

Mike C Materni

Criminal law defines the system of government of which it is the political expression; thus having a normative theory of substantive criminal law is paramount. U.S. criminal law has developed in the absence of such overarching theory, and is now plagued by overcriminalization. This article advances a model of a minimalist criminal law grounded on strong normative principles that are presented and defended not from the perspective of metaphysics or moral philosophy; but rather, in a historical and comparative perspective, as a matter of political choice. Core among those principles is the idea that in a liberal democracy the criminal …

Rebooting The Discourse On Causation In Criminal Law: A Pragmatic (And Imperfect) Approach, Michele C. Materni

Mike C Materni

Causation in the criminal law is an extremely complex issue for several reasons. Prime among those reasons is the fact that most scholars who have tackled the issue have done so by searching for a universal, comprehensive solution. This Article starts from the premise that such a solution is unattainable. Rather than embarking in extravagant philosophical inquiries, the Article offers a pragmatic solution to the issue of causation in the criminal law. Applying a methodology that finds validation in the philosophy of science, the Article argues that causation in the criminal law should be constructed in functional terms. Linking the …

The Metamorphoses Of Reasonable Doubt: How Changes In The Burden Of Proof Have Weakened The Presumption Of Innocence, Steve Sheppard

Steve Sheppard

The standard of proof beyond a reasonable doubt is commonly thought to be an important benefit to the accused. The history of the standard is much more complex and demonstrates lesser commitments to the truth and to the defendant.

This article develops the history of the reasonable doubt instruction in the United States and its English antecedents. Examining the development of the instruction in the seventeenth and eighteenth centuries and its evolution through the nineteenth and twentieth, this history reveals the dual nature of the instruction. It both encapsulated a theory of knowledge and articulated a level of confidence in …