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Full-Text Articles in Law

May The State Punish What It May Not Prevent?, Gabriel S. Mendlow Jul 2020

May The State Punish What It May Not Prevent?, Gabriel S. Mendlow

Articles

In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that ...


The Elusive Object Of Punishment, Gabriel S. Mendlow Jun 2019

The Elusive Object Of Punishment, Gabriel S. Mendlow

Articles

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute’s elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality ...


Reckless Juveniles, Kimberly Thomas Feb 2019

Reckless Juveniles, Kimberly Thomas

Articles

Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U ...


Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow Oct 2018

Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow

Articles

A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much ...


Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow Jun 2018

Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow

Articles

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice ...


Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas Jun 2018

Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas

Articles

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post ...


The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger Jan 2018

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Articles

On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in ...


Treating Wrongs As Wrongs: An Expressive Argument For Tort Law, Scott Hershovitz Nov 2017

Treating Wrongs As Wrongs: An Expressive Argument For Tort Law, Scott Hershovitz

Articles

The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment ...


Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas Mar 2017

Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

Articles

First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the ...


How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley Oct 2016

How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley

Articles

Two years ago, in Johnson v. United States, the Supreme Court held that the so-called “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Last spring, the Court made this rule retroactive in Welch v. United States. Then in June, the Court granted certiorari in Beckles v. United States to resolve two questions that have split lower courts in the wake of Johnson and Welch: (1) whether an identically worded “residual clause” in a U.S. Sentencing Guideline—known as the career offender Guideline—is unconstitutionally void for vagueness; and (2) if so, whether the rule invalidating ...


The Pendulum Swings: Reconsidering Corporate Criminal Prosecution, David M. Uhlmann Jan 2016

The Pendulum Swings: Reconsidering Corporate Criminal Prosecution, David M. Uhlmann

Articles

Corporate crime continues to occur at an alarming rate, yet disagreement persists among scholars and practitioners about the role of corporate criminal prosecution. Some argue that corporations should face criminal prosecution for their misconduct, while others would reserve criminal prosecution for individual corporate officials. Perhaps as a result of this conflict, there has been a dramatic increase over the last decade in the use of deferred prosecution and non-prosecution agreements for some corporate crimes, even as the government continues to bring criminal charges for other corporate crimes. To move beyond our erratic approach to corporate crime, we need a better ...


Why Instrumentalism Matters, Kyron Huigens Jan 2015

Why Instrumentalism Matters, Kyron Huigens

Articles

No abstract provided.


Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield Jan 2015

Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield

Articles

It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars ...


Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit Jan 2013

Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit

Articles

This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment. The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution. It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more ...


On The Role Of Cost-Benefit Analysis In Criminal Justice Policy: A Response To The Imprisoner's Dilemma, Sonja B. Starr Jan 2013

On The Role Of Cost-Benefit Analysis In Criminal Justice Policy: A Response To The Imprisoner's Dilemma, Sonja B. Starr

Articles

With one in 100 adult Americans behind bars, and prison budgets consuming an increasing share of state budgets, few social policy issues compare in significance to the debate over which criminal offenders should be incarcerated and for how long. David Abrams' article, The Impriasoner's Dilemma: A Cost-Benefit Approach to Incarceration,' makes an important contribution to that debate, offering an economic approach to assessing the net benefits of holding or freeing prisoners on the incarceration margin. In this short Response, I first highlight several strengths of Abrams' piece and discuss the possible case that could be made for incorporating formal ...


Slavery And The Law In Atlantic Perspective: Jurisdiction, Jurisprudence, And Justice, Rebecca J. Scott Jan 2011

Slavery And The Law In Atlantic Perspective: Jurisdiction, Jurisprudence, And Justice, Rebecca J. Scott

Articles

The four articles in this special issue experiment with an innovative set of questions and a variety of methods in order to push the analysis of slavery and the law into new territory. Their scope is broadly Atlantic, encompassing Suriname and Saint-Domingue/Haiti, New York and New Orleans, port cities and coffee plantations. Each essay deals with named individuals in complex circumstances, conveying their predicaments as fine-grained microhistories rather than as shocking anecdotes. Each author, moreover, demonstrates that the moments when law engaged slavery not only reflected but also influenced larger dynamics of sovereignty and jurisprudence.


Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur Jan 2010

Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Articles

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does - must ...


After Philip Morris V. Williams: What Is Left Of The "Single-Digit" Ratio?, Anthony J. Sebok Jan 2008

After Philip Morris V. Williams: What Is Left Of The "Single-Digit" Ratio?, Anthony J. Sebok

Articles

This short essay was written for a symposium on The Future of Punitive Damages held at the Charleston School of Law in 2007. I argue that the ratio rule (that punitive damages that exceed a single digit ratio presumptively violate the Due Process Clause), introduced by the Supreme Court in Campbell, is unlikely to survive. I argue this for three reasons. First, many lower courts have found ways to conceal punitive damages awards that impose, in reality, ratios in the double-digits. Second, the refusal of the Court to reverse the plaintiffs punitive damages award in Williams under the ratio rule ...


Pope John Paul Ii, Vatican Ii, And Capital Punishment, Howard Bromberg Jan 2007

Pope John Paul Ii, Vatican Ii, And Capital Punishment, Howard Bromberg

Articles

Part I of this Article describe s Pope John Paul II’s teaching on capital punishment as based on the Scriptures and expressed in Evangelium Vitae and the Catechism. Part II examines the authority with which this doctrine was issued. Part III suggests that this teaching represents the “traditional teaching of the Church,” although a “more perfect expression” of that teaching than has heretofore been recognized. Parts IV and V indicate why the papacy of John Paul II-—“this time, in which God in His hidden design has entrusted to me... very close to the year 2000”-—was ripe for ...


Private Liability For Reckless Consumer Lending, John A. E. Pottow Jan 2007

Private Liability For Reckless Consumer Lending, John A. E. Pottow

Articles

Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the increasing rate at which individuals have been filing for bankruptcy. Taking into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. Instead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of "bad credit"-or credit extended to individuals even though there is a reasonable likelihood that the individual will ...


Deterrence Or Disgorgement? Reading Ciraolo After Campbell, Anthony J. Sebok Jan 2005

Deterrence Or Disgorgement? Reading Ciraolo After Campbell, Anthony J. Sebok

Articles

No abstract provided.


Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah Jan 2004

Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah

Articles

No abstract provided.


Nietzsche And Aretaic Legal Theory, Kyron Huigens Jan 2003

Nietzsche And Aretaic Legal Theory, Kyron Huigens

Articles

No abstract provided.


Introduction: What Does It Mean To Say That A Remedy Punishes?, Anthony J. Sebok Jan 2003

Introduction: What Does It Mean To Say That A Remedy Punishes?, Anthony J. Sebok

Articles

No abstract provided.


What Did Punitive Damages Do? Why Misunderstanding The History Of Punitive Damages Matters Today, Anthony J. Sebok Jan 2003

What Did Punitive Damages Do? Why Misunderstanding The History Of Punitive Damages Matters Today, Anthony J. Sebok

Articles

In 2001 the Supreme Court, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc. suggested that, although modern punitive damages punish, in earlier times they almost exclusively compensated for noneconomic damages that were ignored by a less progressive legal system. This article demonstrates that the historical foundation upon which the Supreme Court bases its argument is groundless. In the Eighteenth and Nineteenth Centuries punitive damages served a number of functions, but none of them were to provide the noneconomic damages identified by the court. Instead, as the article shows, the sort of injuries for which punitive damages were once demanded ...


Solving The Apprendi Puzzle, Kyron Huigens Jan 2002

Solving The Apprendi Puzzle, Kyron Huigens

Articles

No abstract provided.


Rethinking The Penalty Phase, Kyron Huigens Jan 2000

Rethinking The Penalty Phase, Kyron Huigens

Articles

This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation reflects ...


Weak Legs: Misbehavior Before The Enemy, William I. Miller Jan 2000

Weak Legs: Misbehavior Before The Enemy, William I. Miller

Articles

Making cowardice a capital offense strikes us as a kind of barbaric survival from a rougher age, a time, that is, when few doubted that courage ranked higher than pity or prudence in the scale of virtues. And if many of us today believe that capital punishment cannot be justified even for the sadistic torturer, what a shock to discover that, as an official matter at least, Congress reserves it for the person who cannot kill at all.


Living With The Death Penalty, Samuel R. Gross Jan 1999

Living With The Death Penalty, Samuel R. Gross

Articles

The debate over the death penalty in the United States - such as it is - is framed in terms of criminal justice policy. The issues are the same ones we consider when the question is the length of prison sentence for a drug crime: Does the defendant deserve the penalty? Is it cost effective by comparison to other available sanctions? Will it deter others from committing the crimes for which he was convicted? Can we impose this punishment fairly? Can we make sure that innocent people are not condemned?


Hard Cases, Carl E. Schneider Mar 1998

Hard Cases, Carl E. Schneider

Articles

Robert Latimer was born in 1953 on a farm on the prairies of Saskatchewan and grew up to own a 1,280-acre farm. In 1980 he married, and that year Tracy, the first of four children, was born. During her birth, Tracy's brain was terribly damaged by lack of oxygen, and severe cerebral palsy ensued. By 1993 Tracy could laugh, smile, and cry, and she could recognize her parents and her siblings. But she could not understand her own name or even simple words like "yes" and "no." She could not swallow well and would so often vomit her ...