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Articles 1 - 15 of 15

Full-Text Articles in Jurisprudence

An Intellectual History Of Mass Incarceration, Alice Ristroph Oct 2019

An Intellectual History Of Mass Incarceration, Alice Ristroph

Boston College Law Review

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little. This Article asks, as Americans built the carceral state, what were we thinking? The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century. In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in ...


Rape By Malice, Kari E. Hong Jan 2017

Rape By Malice, Kari E. Hong

Boston College Law School Faculty Papers

When people seek to reform rape law, the focus is on changing the actus reus—either abandoning the force element or redefining consent. This article argues that both approaches overlook a critical opportunity for reform, which is the crime’s mens rea. Knowledge, or general intent, is the most common mens rea in rape offenses. The problem with this mental state is that proving what a defendant knew is one of the hardest parts of any criminal prosecution. Although scholars have explored reckless or negligent standards, this article proposes that states adopt the mens rea of malice—a callous indifference ...


Cruelty In Criminal Law: Four Conceptions, Paulo D. Barrozo Sep 2015

Cruelty In Criminal Law: Four Conceptions, Paulo D. Barrozo

Boston College Law School Faculty Papers

This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty.

No one should be neutral in relation to cruelty. Eminently, cruelty in criminal law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of ...


Obergefell's Sword: The Liberal State Interest In Marriage, Kari E. Hong Jan 2015

Obergefell's Sword: The Liberal State Interest In Marriage, Kari E. Hong

Boston College Law School Faculty Papers

Up until Obergefell v. Hodges, pro-marriage ideology was used to justify homophobic laws and the entrenched sexism of traditional marriages. Now that marriage equality is the law of the land, there is room for a new conversation over the meaning of marriage. Specifically, this essay argues that the proponents of traditional marriage were correct in asserting that the institution of marriage has benefits—intangible and tangible—that no other relationship currently provides to its members. Put another way, although those who defended traditional marriage were wrong with respect to their agenda, what if they in fact were absolutely right in ...


What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo D. Barrozo Dec 2014

What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo D. Barrozo

Boston College Law School Faculty Papers

This essay offers an answer to the question of what societies afflicted by atrocities ought to transition into. The answer offered is able to better direct the evaluation of previous models and the design of new models of transitional justice. Into what, then, should transitional justice transition? I argue in this essay that transitional justice should be a transition into the political, understood in its robust liberalism version. I further argue that the most significant part of transitions ought to happen in the minds of the members of political communities, precisely where the less tangible and yet most important dimension ...


Taking Voluntariness Seriously, Ian P. Farrell, Justin F. Marceau Sep 2013

Taking Voluntariness Seriously, Ian P. Farrell, Justin F. Marceau

Boston College Law Review

Courts and commentators commonly claim that criminal law contains a voluntary act requirement. Despite the ubiquity of this assertion, there is remarkably little agreement on what the voluntary act requirement entails. This lack of uniformity is particularly problematic because, for some crimes, whether a defendant is guilty or innocent will turn on which conception of voluntariness is applied. In this Article, we critique the various conceptions of the voluntary act requirement, and propose an alternative set of principles for applying the notion that person is only criminally culpable for crimes committed voluntarily. First, culpability requires that the actus reus as ...


The Jurisprudence Of Cruelty In Criminal Law, Paulo D. Barrozo Jan 2007

The Jurisprudence Of Cruelty In Criminal Law, Paulo D. Barrozo

Boston College Law School Faculty Papers

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca’s De Clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and ...


Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham Dec 2005

Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham

Boston College Law School Faculty Papers

In this pioneering book, Boston College Law School’s Academic Dean, Lawrence Cunningham, arranges selected contributions of his faculty’s scholarship into a meditation upon justice. The book weaves a combination of theory and practice to articulate moral and ethical values that facilitate rational application of law. It envisions legal arrangements imbued with commitments of the Jesuit tradition, including the dignity of persons, the common good and compassion for the poor. This reflective collection of inquiry evokes a signature motif of the BC Law faculty in dozens of different legal subjects. Materials downloadable from this abstract consist of: Table of ...


The Idea Of Equality And Affirmative Actions, Paulo D. Barrozo Jan 2004

The Idea Of Equality And Affirmative Actions, Paulo D. Barrozo

Boston College Law School Faculty Papers

The article starts out from a concise reconstruction of the republican and the democratic ideals in the context of the modern expansion on emancipatory ideals and programs so as to produce an understanding of the principle of equality in light of them. It then seeks to develop the rudiments of a constitutional theory of equality consistent with the emancipatory ideals from which it derives its most robust meaning. In its last segment the article examines the question of "affirmative action" in the access to higher education within the scope of the proposed basis for a theory of equality.


Reinventing Holmes: The Hidden, Inner, Life Of A Cynical, Ambitious, Detached, And Facsistic Old Judge Without Values, Catharine P. Wells Jan 2002

Reinventing Holmes: The Hidden, Inner, Life Of A Cynical, Ambitious, Detached, And Facsistic Old Judge Without Values, Catharine P. Wells

Boston College Law School Faculty Papers

No abstract provided.


30 = 20: ‘Understanding’ Maximum Sentence Enhancements, Frank R. Herrmann S.J. Jan 1998

30 = 20: ‘Understanding’ Maximum Sentence Enhancements, Frank R. Herrmann S.J.

Boston College Law School Faculty Papers

In this article, Professor Herrmann argues that the due process protections of a criminal trial should apply to aggravating factors that under current “maximum-enhancing statutes” allow judges to impose lengthier punishments in the sentencing phase. Part I considers the Supreme Court's rationale for refusing to apply full due process safeguards to all types of sentencing schemes. This background will reveal the unique quality of maximum-enhancing statutes and establish why the due process protections of a criminal trial should apply to sentencing under maximum-enhancing statutes. Part I, therefore, undertakes to explain courts' rationales to deny criminal defendants full criminal due ...


Old Fashioned Postmodernism And The Legal Theories Of Oliver Wendell Holmes, Jr., Catharine P. Wells Jan 1997

Old Fashioned Postmodernism And The Legal Theories Of Oliver Wendell Holmes, Jr., Catharine P. Wells

Boston College Law School Faculty Papers

No abstract provided.


Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom Jan 1993

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Boston College Law School Faculty Papers

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court ...


Is Gender Justice A Completed Agenda? Review Of The Feminization Of America: How Women's Values Are Changing Our Public And Private Lives By Elinor Lenz And Barbara Meyerhoff. Los Angeles, Ca: Jeremy P. Tarcher, Inc., 1985., Catharine P. Wells Jan 1987

Is Gender Justice A Completed Agenda? Review Of The Feminization Of America: How Women's Values Are Changing Our Public And Private Lives By Elinor Lenz And Barbara Meyerhoff. Los Angeles, Ca: Jeremy P. Tarcher, Inc., 1985., Catharine P. Wells

Boston College Law School Faculty Papers

No abstract provided.


Making Bankruptcy Work For Consumers: Suggested Amendments To The Federal Bankruptcy Act, Catharine P. Wells Jan 1976

Making Bankruptcy Work For Consumers: Suggested Amendments To The Federal Bankruptcy Act, Catharine P. Wells

Boston College Law School Faculty Papers

No abstract provided.