Philosophy Commons^™

Against The Received Wisdom: Why The Criminal Justice System Should Give Kids A Break, Stephen J. Morse

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Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about …

Findlay Stark, Culpable Carelessness: Recklessness And Negligence In The Criminal Law, Cambridge: Cambridge University Press, 2016, Kimberly Kessler Ferzan

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Culpable Carelessness by Findlay Stark is a careful and considered contribution to the 'punishment for negligence' debate. As well as providing a comprehensive overview of the doctrinal and theoretical aspects of recklessness and negligence in the criminal law, it also offers novel insights for scholars already steeped in these debates. An additional methodological strength is that Stark takes seriously the connection between theory and law, offering useful potential jury instructions on recklessness and negligence.

Patty Hearst Reconsidered: Personal Identity In The Criminal Law, Kimberly Kessler Ferzan

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In this contribution to a symposium celebrating Joshua Dressler, I revisit the Dressler/Delgado debate over Patty Hearst through the prism of personal identity. After reviewing why personal identity presents a problem for punishment, I discuss how a "personal identity" defense would fit within the criminal law, including when it would undermine status responsibility, when it would undermine a voluntary act, and when it would serve as an excuse.

Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse

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This article is based on the author’s Barrock Lecture in Criminal Law presented at the Marquette University Law School. The central thesis is that the folk psychology that underpins criminal responsibility is correct and that our commonsense understanding of agency and responsibility and the legitimacy of criminal justice generally are not imperiled by contemporary discoveries in the various sciences, including neuroscience and genetics. These sciences will not revolutionize criminal law, at least not anytime soon, and at most they may make modest contributions to legal doctrine, practice, and policy. Until there are conceptual or scientific breakthroughs, this is my story …

The Common Sense Of Contract Formation, Tess Wilkinson-Ryan, David A. Hoffman

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What parties know and think they know about contract law affects their obligations under the law and their intuitive obligations toward one another. Drawing on a series of new experimental questionnaire studies, this Article makes two contributions.First, it lays out what information and beliefs ordinary individuals have about how to form contracts with one another. We find that the colloquial understanding of contract law is almost entirely focused on formalization rather than actual assent, though the modern doctrine of contract formation takes the opposite stance. The second Part of the Article tries to get at whether this misunderstanding matters. Is …

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 …

Pragmatic Rationality And Risk, Claire Oakes Finkelstein

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Pragmatic theories focus on whether agents fare better acting on the basis of a particular intention or plan, rather than whether this can be justified in terms of the expected utility associated with the plan. This article argues that, while attractive, pragmatic theories have difficulty vindicating the rationality of plans involving an element of risk. In “Assure and Threaten,” David Gauthier noticed this difficulty with respect to deterrent threats. This article argues that the same difficulty exists for assurances involving an element of risk. It then explores whether Pragmatists could solve the shortcomings of their approach by adopting the Chance …

Plotting Premeditation's Demise, Kimberly Kessler Ferzan

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Theorists have consistently critiqued premeditation as being both over and under inclusive in capturing the worst killers. It is over inclusive because it covers a mercy killer, who emotionally deliberates about putting a loved one out of his misery. It is under inclusive because it does not include hot blooded, angry attacks that reveal deep indifference to the value of human life.

This symposium contribution argues that the problem is that premeditation can only partially capture the most culpable choices. Culpability is complex. Culpability assessments include the analysis of risks imposed; the reasons why they were imposed; the defendant’s thoughts …

Provocation Manslaughter As Partial Justification And Partial Excuse, Mitchell N. Berman, Ian Farrell

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The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. It traces back to the twelfth century, and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law theorists. The dominant scholarly view holds that provocation is best explained and defended …

Beyond Intention, Kimberly Kessler Ferzan

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The conventional view is that a result is intended if it is motivationally significant - i.e., if it is why the person acted. However, inseparable effects cases place pressure on this conventional view for we intuitively reject the claim that, for instance, one can intend to decapitate without intending to kill. These cases therefore threaten an important border in both law and morality - the distinction between what we intend and what we foresee. In resolving the problem of inseparable effects, this article challenges the conventional view that intentions are co-extensive with motivational significance. Drawing on philosophy of mind literature, …

Thoroughly Modern: Sir James Fitzjames Stephen On Criminal Responsibility, Stephen J. Morse

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No abstract provided.

The Non-Problem Of Free Will In Forensic Psychiatry And Psychology, Stephen J. Morse

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This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.

Criminal Responsibility And The Disappearing Person, Stephen J. Morse

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A contribution to a symposium on George Fletcher, The Grammar of Criminal Law: American, Comparative, International (Oxford 2007).

Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse

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No abstract provided.

Inevitable Mens Rea, Stephen J. Morse

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No abstract provided.

Justification And Excuse, Law And Morality, Mitchell N. Berman

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Anglo-American theorists of the criminal law have concentrated on-one is tempted to say "obsessed over"-the distinction between justification and excuse for a good quarter-century and the scholarly attention has purchased unusually widespread agreement. Justification defenses are said to apply when the actor's conduct was not morally wrongful; excuse defenses lie when the actor did engage in wrongful conduct but is not morally blameworthy. A near consensus thus achieved, theorists have turned to subordinate matters, joining issue most notably on the question of whether justifications are "subjective"-turning upon the actor's reasons for acting-or "objective"-involving only facts independent of the actor's beliefs …

Not So Hard (And Not So Special), After All: Comments On Zimring's "The Hardest Of The Hard Cases", Stephen J. Morse

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No abstract provided.

Neither Desert Nor Disease, Stephen J. Morse

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No abstract provided.

Incommensurable Choices And The Problem Of Moral Ignorance, Leo Katz

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No abstract provided.

In Defense Of The Model Penal Code: A Reply To Professor Fletcher, Paul H. Robinson

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No abstract provided.

Moral Responsibility: A Story, An Argument, And A Vision, Stephen J. Morse

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No abstract provided.

Against Nature: On Robert Wright's The Moral Animal, Amy L. Wax

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No abstract provided.

The Irrelevance Of The Intended To Prima Facie Culpability: Comment On Moore, Claire Oakes Finkelstein

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No abstract provided.

Brain And Blame, Stephen J. Morse

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No abstract provided.

Second-Order Reasons, Uncertainty And Legal Theory, Stephen R. Perry

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No abstract provided.

Failed Explanations And Criminal Responsibility: Experts And The Unconscious, Stephen J. Morse

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No abstract provided.

Crazy Behavior, Morals, And Science: An Analysis Of Mental Health Law, Stephen J. Morse

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No abstract provided.