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Internal And External Challenges To Culpability, Stephen J. Morse
Internal And External Challenges To Culpability, Stephen J. Morse
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This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.
The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …
Against The Received Wisdom: Why The Criminal Justice System Should Give Kids A Break, Stephen J. Morse
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 …
Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth
Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth
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The continuing debate over the President’s directive authority is but one of the many separation-of-powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the President possesses the power to make appointments of agency heads without Senate confirmation during certain congressional recesses. The Court has passed judgment recently, but has yet to resolve fully, questions about Congress’s authority to constrain the President’s power to remove the heads of administrative agencies. And the Court has considered the limits on Congress’s ability to delegate legislative authority to other rulemaking …
The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson
The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson
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This paper reviews the various ways in which an offender's mental illness can have an effect on liability and offense grading under American criminal law. The 52 American jurisdictions have adopted a variety of different formulations of the insanity defense. A similar diversity of views is seen in the way in which different states deal with mental illness that negates an offense culpability requirement, a bare majority of which limit a defendant's ability to introduce mental illness for this purpose. Finally, the modern successor of the common law provocation mitigation allows, in its new breadth, certain forms of mental illness …
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 …