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Full-Text Articles in Jurisprudence
Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach
Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach
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No abstract provided.
Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd
Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd
Reid G. Fontaine
Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative, that …
Punishment As Contract, Claire Oakes Finkelstein
Punishment As Contract, Claire Oakes Finkelstein
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This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …
Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas
Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas
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No abstract provided.
The Myth Of The Fully Informed Rational Actor, Stephanos Bibas
The Myth Of The Fully Informed Rational Actor, Stephanos Bibas
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No abstract provided.
In Self-Defense Regarding Self-Defense: A Rejoinder To Professor Corrado, Reid G. Fontaine
In Self-Defense Regarding Self-Defense: A Rejoinder To Professor Corrado, Reid G. Fontaine
Reid G. Fontaine
This is a rejoinder to Professor Corrado in the upcoming special section of the American Criminal Law Review on the nature, structure, and function of self-defense and defense of others law.
On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held
On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held
Reid G. Fontaine
A “cultural defense” to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values—the purported aim of the cultural defense—because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms—after all, justice systems are themselves cultural institutions. Furthermore, a defendant’s background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt without damaging the culpability …
Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz
Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz
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What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the …
The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein
The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein
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This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.
Forgiveness In Criminal Procedure, Stephanos Bibas
Forgiveness In Criminal Procedure, Stephanos Bibas
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Though forgiveness and mercy matter greatly in social life, they play fairly small roles in criminal procedure. Criminal procedure is dominated by the state, whose interests in deterring, incapacitating, and inflicting retribution leave little room for mercy. An alternative system, however, would focus more on the needs of human participants. Victim-offender mediation, sentencing discounts, and other mechanisms could encourage offenders to express remorse, victims to forgive, and communities to reintegrate and employ offenders. All of these actors could then better heal, reconcile, and get on with their lives. Forgiveness and mercy are not panaceas: not all offenders and victims would …
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
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The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as closely as possible. …
Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer
Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer
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No abstract provided.
Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas
Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas
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Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The …
Pleas' Progress, Stephanos Bibas
Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach
Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach
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No abstract provided.
The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas
The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas
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No abstract provided.
The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas
The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas
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No abstract provided.
Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas
Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas
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No abstract provided.
Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein
Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein
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No abstract provided.
The Inefficiency Of Mens Rea, Claire Oakes Finkelstein
The Inefficiency Of Mens Rea, Claire Oakes Finkelstein
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No abstract provided.
Crazy Reasons, Stephen J. Morse
On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein
On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein
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No abstract provided.
Self-Defense As A Rational Excuse, Claire Oakes Finkelstein
Self-Defense As A Rational Excuse, Claire Oakes Finkelstein
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No abstract provided.
Duress: A Philosophical Account Of The Defense In Law, Claire Oakes Finkelstein
Duress: A Philosophical Account Of The Defense In Law, Claire Oakes Finkelstein
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No abstract provided.
Justice, Mercy, And Craziness, Stephen J. Morse
Justice, Mercy, And Craziness, Stephen J. Morse
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No abstract provided.
The Twilight Of Welfare Criminology, Stephen J. Morse
The Twilight Of Welfare Criminology, Stephen J. Morse
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No abstract provided.
The Twilight Of Welfare Criminology: A Final Word, Stephen J. Morse
The Twilight Of Welfare Criminology: A Final Word, Stephen J. Morse
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No abstract provided.