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Articles 1 - 11 of 11
Full-Text Articles in Legal History
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
All Faculty Scholarship
In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …
Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield
Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield
Articles
It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars …
Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, B. J. Casey, Andre Davis, David L. Faigman, Morris Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe
Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, B. J. Casey, Andre Davis, David L. Faigman, Morris Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe
All Faculty Scholarship
President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations. The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent …
Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt
Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt
Faculty Scholarship
Beccaria’s treatise On Crimes and Punishments (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophes, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics — these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions …
Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami
Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami
Faculty Publications
This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen's ideas …
Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz
Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz
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Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks …
An Epilogue To The Age Of Pound, Thomas A. Green
An Epilogue To The Age Of Pound, Thomas A. Green
Articles
Doubts about the reality of criminal offenders' autonomy have sometimes played a role in the movement to abolish, or greatly reduce the reach of, the sanction of capital punishment.
Freedom And Criminal Responsibility In The Age Of Pound: An Essay On Criminal Justice, Thomas A. Green
Freedom And Criminal Responsibility In The Age Of Pound: An Essay On Criminal Justice, Thomas A. Green
Articles
The concept of freedom has two main aspects: political liberty and freedom of the will. I am concerned here with the latter, although - as these two aspects of freedom are not entirely unrelated to each other - I shall touch also on the former. Enough has been written from a philosophical perspective on the relationship between free will and the law that it is not easy to justify yet another such undertaking. But there may still be room for some informal observations on the manner in which doubts about the concept of freedom of the will affected discussion of …
The Romance Of Revenge: Capital Punishment In America, Samuel R. Gross
The Romance Of Revenge: Capital Punishment In America, Samuel R. Gross
Articles
On February 17, 1992, Jeffrey Dahmer was sentenced to 15 consecutive terms of life imprisonment for killing and dismembering 15 young men and boys (Associated Press 1992a). Dahmer had been arrested six months earlier, on July 22, 1991. On January 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on January 30. The jury heard two weeks of testimony about murder, mutilation and necrophilia; they deliberated for 5 hours before finding that Dahmer was sane when he committed these …
Dreams, Prophecy And Sorcery: Blaming The Secret Offender In Medieval Iceland, William I. Miller
Dreams, Prophecy And Sorcery: Blaming The Secret Offender In Medieval Iceland, William I. Miller
Articles
An eminent legal historian once noted that the fundamental problem of law enforcement in primitive societies is that of the secret offender. The Icelandic legal and dispute processing systems depended on a wrongdoer publishing his deed, or at least committing it in an open and notorious manner. No state agencies existed to investigate and discover the non-publishing wrongdoer. But there were strong normative inducements to wrong openly; one's name was at stake. There was absolutely no honor in thievery, only the darkest shame; the ransmadr, on the other hand, suffered no shame for his successful raids, even if he did …
Element Analysis In Defining Criminal Liability: The Model Penal Code And Beyond, Paul H. Robinson, Jane A. Grall
Element Analysis In Defining Criminal Liability: The Model Penal Code And Beyond, Paul H. Robinson, Jane A. Grall
All Faculty Scholarship
The pursuit of fairness and effectiveness has inspired and guided criminal code reformers of the past two decades. Because penal law protects the most important societal interests and authorizes the most serious sanctions the government may impose - the stigma of conviction, imprisonment, and even death - a criminal code, more than any other body of law, should be rational, clear, and internally consistent. Only a precise, principled code that sufficiently defines forbidden conduct can achieve its goals of condemnation and deterrence. Such a code gives citizens fair warning of what will constitute a crime, limits governmental discretion in determining …