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The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton
The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton
All Faculty Scholarship
The book The Structure and Limits of Criminal Law (Ashgate) collects and reprints classic articles on three topics: the conceptual structure of criminal law doctrine, the conduct necessary and that sufficient for criminal liability, and the offender culpability and blameworthiness necessary and that sufficient for criminal liability. The collection includes articles by H.L.A. Hart, Sanford Kadish, George Fletcher, Herbert Packer, Norval Morris, Gordon Hawkins, Andrew von Hirsch, Bernard Harcourt, Richard Wasserstrom, Andrew Simester, John Darley, Kent Greenawalt, and Paul Robinson. This essay serves as an introduction to the collection, explaining how each article fits into the larger debate and giving …
Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, And Resisting Injustice, Jules Lobel
Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, And Resisting Injustice, Jules Lobel
Articles
When the Center for Constitutional Rights (CCR) brought the first habeas cases challenging the Executive’s right to detain prisoners in a law free zone at Guantanamo in 2002, almost no legal commentator gave the plaintiffs much chance of succeeding. Yet, two years later in 2004, after losing in both the District Court and Court of Appeals, the Supreme Court in Rasul v. Bush handed CCR a resounding victory. Four years later, the Supreme Court again ruled in CCR’s favor in 2008 in Boumediene v. Bush, holding that the detainees had a constitutional right to habeas and declaring the Congressional …
Punitive Preventive Justice: A Critique, Bernard E. Harcourt
Punitive Preventive Justice: A Critique, Bernard E. Harcourt
Faculty Scholarship
This book chapter critically examines punitive preventive measures, such as preventive detention for dangerous individuals, stop-and-frisks on the street, and order-maintenance policing. After reviewing the traditional concern expressed about punitive preventive practices, the chapter investigates the empirical evidence in support of such measures, concluding that the purported need for these measures is, on balance, factually overstated and generally unproven. But the empirical problems foreground a deeper theoretical difficulty with punitive preventive justice, namely that the modern approach to punitive prevention relies predominantly on economic cost-benefit analytic methods that effectively displace political debate and contestation. Like earlier punitive preventive interventions – …
Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes
Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes
National Security Law Program
It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups and in a great deal of legal scholarship. It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from …
Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel
Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel
Articles
Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have …