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Social and Behavioral Sciences Commons™
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Articles 1 - 8 of 8
Full-Text Articles in Social and Behavioral Sciences
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
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Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …
Putting The Trial Penalty On Trial, David S. Abrams
Putting The Trial Penalty On Trial, David S. Abrams
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The "trial penalty" is a concept widely accepted by all the major actors in the criminal justice system: defendants, prosecutors, defense attorneys, court employees, and judges. The notion is that defendants receive longer sentences at trial than they would have through plea bargain, often substantially longer. The concept is intuitive: longer sentences are necessary in order to induce settlements and without a high settlement rate it would be impossible for courts as currently structured to sustain their immense caseload. While intuitively appealing, this view of the trial penalty is completely at odds with economic prediction. Since both prosecutors and defendants …
Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse
Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse
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This is a chapter in a book, Constitution 3.0: Freedom and Technological Change, edited by Jeffrey Rosen and Benjamin Wittes and published by Brookings. It considers whether likely advances in neuroscience will fundamentally alter our conceptions of human agency, of what it means to be a person, and of responsibility for action. I argue that neuroscience poses no such radical threat now and in the immediate future and it is unlikely ever to pose such a threat unless it or other sciences decisively resolve the mind-body problem. I suggest that until that happens, neuroscience might contribute to the reform of …
Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp
Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp
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The Ninth Circuit may soon consider whether challenges to antitrust activity that occurs abroad must invariably be addressed under the rule of reason, which will make criminal prosecution difficult or impossible.
When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of …
A Good Enough Reason: Addiction, Agency And Criminal Responsibility, Stephen J. Morse
A Good Enough Reason: Addiction, Agency And Criminal Responsibility, Stephen J. Morse
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The article begins by contrasting medical and moral views of addiction and how such views influence responsibility and policy analysis. It suggests that since addiction always involves action and action can always be morally evaluated, we must independently decide whether addicts do not meet responsibility criteria rather than begging the question and deciding by the label of ‘disease’ or ‘moral weakness’. It then turns to the criteria for criminal responsibility and shows that the criteria for criminal responsibility, like the criteria for addiction, are all folk psychological. Therefore, any scientific information about addiction must be ‘translated’ into the law’s folk …
Natural Law & Lawlessness: Modern Lessons From Pirates, Lepers, Eskimos, And Survivors, Paul H. Robinson
Natural Law & Lawlessness: Modern Lessons From Pirates, Lepers, Eskimos, And Survivors, Paul H. Robinson
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The natural experiments of history present an opportunity to test Hobbes' view of government and law as the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet the wide variety of situations show common patterns among the groups in their responses to their often difficult circumstances. Rather than survival of the fittest, a more common reaction is social cooperation and a commitment to fairness and justice, although both can be subverted in certain predictable ways. The absent-law situations also …
The Imprisoner's Dilemma: A Cost-Benefit Approach To Incarceration, David S. Abrams
The Imprisoner's Dilemma: A Cost-Benefit Approach To Incarceration, David S. Abrams
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Depriving an individual of life or liberty is one of the most intrusive powers that governments wield. Decisions about imprisonment capture the public imagination. The stories are told daily in newspapers and on TV, dramatized in literature and on film, and debated by scholars. The United States has created an ever-increasing amount of material for discussion as the state incarceration rate quadrupled between 1980 and 2000. While the decision to incarcerate an individual is given focused attention by a judge, prosecutor, and (occasionally) a jury, the overall incarceration rate is not. In this article, I apply a cost-benefit approach to …
Alexander's Genius, Mitchell N. Berman