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Criminal Law

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Desert

2008

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Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson Mar 2008

Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson

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The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment -- referred to variously as desert, just punishment, retributive punishment, or simply doing justice -- may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code's provisions. Indeed, …


Culpable Acts Of Risk Creation, Larry Alexander, Kimberly Kessler Ferzan Jan 2008

Culpable Acts Of Risk Creation, Larry Alexander, Kimberly Kessler Ferzan

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In our view, an actor deserves punishment when he demonstrates insufficient concern for others, that is, when he engages in a culpable act of risk creation. In this essay, we address how we would rethink the actus reus so as to track the actor's culpability and blameworthiness. Part I sets forth our view that defendants deserve to be punished for culpable acts. Briefly put, an actor is culpable when he risks others' legally protected interests for insufficient reasons. In Part II, we turn to the question of how we would formulate a unit of culpable action. We argue that with …