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Articles 1 - 10 of 10
Full-Text Articles in Law
On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt
On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt
Faculty Scholarship
In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …
Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman
Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman
Faculty Scholarship
The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …
Defining Federal Crimes – Chapters 2-4, Daniel C. Richman, Kate Stith, William J. Stuntz
Defining Federal Crimes – Chapters 2-4, Daniel C. Richman, Kate Stith, William J. Stuntz
Faculty Scholarship
These are three chapters from a forthcoming Federal Criminal Law casebook that will focus on institutional interactions – between Congress and the courts; the courts and prosecutors, and among elements within the federal enforcement bureaucracy. Chapter 2 focuses on criminal jurisdiction under the Commerce Clause. Chapter 3 generally considers how separation of powers issues play out in the interpretation of federal criminal statutes. Chapter 4 explores mail and wire fraud.
Keynote: The Crisis And Criminal Justice, Bernard Harcourt
Keynote: The Crisis And Criminal Justice, Bernard Harcourt
Faculty Scholarship
There has been a lot of recent debate over whether the economic crisis presents an opportunity to reduce prison populations and improve the state of criminal justice in this country. Some commentators suggest that the financial crisis has already triggered a move towards reducing the incarcerated population. Some claim that there is a new climate of bipartisanship on punishment. Kara Gotsch of the Sentencing Project, for example, suggests that we are now in a unique political climate embodied by the passage of the Second Chance Act under President George W. Bush – a climate that is substantially different than the …
General Equilibrium Effects Of Prison On Crime: Evidence From International Comparisons, Justin Mccrary, Sarath Sanga
General Equilibrium Effects Of Prison On Crime: Evidence From International Comparisons, Justin Mccrary, Sarath Sanga
Faculty Scholarship
We compare crime and incarceration rates over time for the United States, Canada, and England and Wales, as well as for a small selection of comparison countries. Shifts in U.S. punishment policy led to a five-fold increase in the incarceration rate, while nearly every other country experienced only minor increases in incarceration. The large shifts in U.S. punishment policy do not seem to have caused commensurately large improvements in public safety.
Frye And Lafler: No Big Deal, Gerard E. Lynch
Frye And Lafler: No Big Deal, Gerard E. Lynch
Faculty Scholarship
The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process …
The Texas Deterrence Muddle, Jeffrey A. Fagan, Amanda Geller, Franklin E. Zimring
The Texas Deterrence Muddle, Jeffrey A. Fagan, Amanda Geller, Franklin E. Zimring
Faculty Scholarship
The ongoing debate about capital punishment in the United States juggles several contentious questions. Innocence, cost, racial fairness, proportionality, retributivist calculus, and deterrence concerns thread a literature whose richness testifies to the endurance of capital punishment in American legal and political culture. For proponents of capital punishment, the connection between the moral and utilitarian or consequentialist positions trumps all other concerns: They suggest that if the death penalty can prevent – through the incapacitation of the offender and general deterrence of would-be killers – the loss of even one innocent life from murder, then execution is a morally justified or …
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Faculty Scholarship
A significant and growing portion of the U.S. population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The …
Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracey L. Meares, Jeffery Fagan
Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracey L. Meares, Jeffery Fagan
Faculty Scholarship
Research on procedural justice and legitimacy suggests that compliance with the law is best secured not by mere threat offorce, but by fostering beliefs in the fairness of the legal systems and in the legitimacy of legal actors. To date, however, this research has been based on general population surveys and more banal types of law-violating behavior (such as unpaid parking tickets, excessive noise, etc.). Thus, while we know why the average citizen obeys the law, we do not have similar knowledge about populations most likely to commit serious violent crimes. This study fills that void by using a unique …
Law, Economics, And The Burden(S) Of Proof, Eric L. Talley
Law, Economics, And The Burden(S) Of Proof, Eric L. Talley
Faculty Scholarship
This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic …