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Full-Text Articles in Law

Defending Honor And Beyond: Reconsidering The Relationship Between Seemingly Futile Defense And Permissible Harming, Kimberly Kessler Ferzan Jan 2018

Defending Honor And Beyond: Reconsidering The Relationship Between Seemingly Futile Defense And Permissible Harming, Kimberly Kessler Ferzan

Faculty Scholarship at Penn Law

In Helen Frowe's book, Defensive Killing, she argues that some cases of seemingly futile self-defense are actually instances of justifiable defense of the victim's honor. This paper explores Frowe's claim, first by isolating the central cases and then by examining her rejection of punitive reasons. From there, the paper examines Frowe's understanding of "defense of honor," ultimately suggesting that Frowe's conception is best construed as action that has expressive, but not defensive, value. From there, I turn to two more general puzzles. First, what if the defender mistakenly believes that she can successfully defend and ...


The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten Jan 2015

The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten

Faculty Scholarship at Penn Law

There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”

The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority ...


Provocateurs, Kimberly Kessler Ferzan Jan 2013

Provocateurs, Kimberly Kessler Ferzan

Faculty Scholarship at Penn Law

When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so?

Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage ...


Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan Jan 2012

Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan

Faculty Scholarship at Penn Law

The use of the term, "self-defense, " covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, "I am going to kill you," the aggressor's behavior forfeits the aggressor's right against the defender's infliction of harm that is intended to repel the aggressor's attack. Because the right is forfeited, numbers do ...


A Right To Bear Firearms But Not To Use Them? Defensive Force Rules And The Increasing Effectiveness Of Non-Lethal Weapons, Paul H. Robinson Jan 2009

A Right To Bear Firearms But Not To Use Them? Defensive Force Rules And The Increasing Effectiveness Of Non-Lethal Weapons, Paul H. Robinson

Faculty Scholarship at Penn Law

Under existing American law, advances in non-lethal weapons increasingly make the use of firearms for defense unlawful and the Second Amendment of little practical significance. As the effectiveness and availability of less lethal weapons increase, the choice of a lethal firearm for protection is a choice to use more force than is necessary, in violation of existing self-defense law. At the same time, a shift to non-lethal weapons increases the frequency of situations in which a person’s use of force is authorized because defenders with non-lethal weapons are freed from the special proportionality requirements that limit the use of ...


Life And Liberty: Seven Factors That Will Better Evaluate Self-Defense In Nevada's Common Law On Retreat, Robert Stephens Jan 2008

Life And Liberty: Seven Factors That Will Better Evaluate Self-Defense In Nevada's Common Law On Retreat, Robert Stephens

Nevada Law Journal

No abstract provided.


Arms Embargoes And The Right To Self-Defense In International Law , Matthew D. Vandermyde Mar 2006

Arms Embargoes And The Right To Self-Defense In International Law , Matthew D. Vandermyde

ExpressO

Over the past few decades, a number of nations have argued that the mandatory arms embargoes imposed against them violated their right to self-defense. In some cases the Security Council has responded by adjusting the embargo to exclude its application to arms destined for the government, such as in Rwanda and Sierra Leone. But in other cases the Security Council has rejected the argument and refused to lift or adjust the embargo, such as in Bosnia and Liberia. In December of 2005, Somalia put forth a similar line of argument, asking the Security Council to lift the arms embargo imposed ...


Reconceptualizing Criminal Law Defenses, Victoria Nourse Jan 2003

Reconceptualizing Criminal Law Defenses, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In 1933, one of the leading theorists of the criminal law, Jerome Michael, wrote openly of the criminal law "as an instrument of the state." Today, criminal law is largely allergic to claims of political theory; commentators obsess about theories of deterrence and retribution, and the technical details of model codes and sentencing grids, but rarely speak of institutional effects or political commitments. In this article, the author aims to change that emphasis and to examine the criminal law as a tool for governance. Her approach is explicitly constructive: it accepts the criminal law that we have, places it in ...