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Articles 1 - 10 of 10

Full-Text Articles in Law

Codifying Shari'a: International Norms, Legality & The Freedom To Invent New Forms, Paul H. Robinson, Adnan Zulfiqar, Margaret Kammerud, Michael Orchowski, Elizabeth A. Gerlach, Adam L. Pollock, Thomas M. O'Brien, John C. Lin, Tom Stenson, Negar Katirai, J. John Lee, Marc Aaron Melzer Nov 2006

Codifying Shari'a: International Norms, Legality & The Freedom To Invent New Forms, Paul H. Robinson, Adnan Zulfiqar, Margaret Kammerud, Michael Orchowski, Elizabeth A. Gerlach, Adam L. Pollock, Thomas M. O'Brien, John C. Lin, Tom Stenson, Negar Katirai, J. John Lee, Marc Aaron Melzer

Faculty Scholarship at Penn Law

The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified ...


Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas Oct 2006

Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas

Faculty Scholarship at Penn Law

This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge ...


A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein Oct 2006

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories ...


Transparency And Participation In Criminal Procedure, Stephanos Bibas Jun 2006

Transparency And Participation In Criminal Procedure, Stephanos Bibas

Faculty Scholarship at Penn Law

The insiders who run the criminal justice system–judges, police, and especially prosecutors–have information, power, and self-interests that greatly influence the criminal justice process and outcomes. Outsiders–crime victims, bystanders, and most of the general public–find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result, a spiral ensues: insiders twist rules as they see fit, outsiders try to constrain them, and insiders find new ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law’s ...


Brain Overclaim Syndrome And Criminal Responsibility: A Diagnostic Note, Stephen J. Morse Apr 2006

Brain Overclaim Syndrome And Criminal Responsibility: A Diagnostic Note, Stephen J. Morse

Faculty Scholarship at Penn Law

This brief diagnostic note identifies a cognitive pathology, "Brain Overclaim Syndrome [BOS]," that often afflicts those inflamed by the fascinating new discoveries in the neurosciences. It begins by suggesting how one should think about the relation of neuroscience (or any other material explanation of human behavior) to criminal responsibility, distinguishing between internal and external critiques based on neuroscience. It then describes the signs and symptoms of BOS, the essential feature of which is to make claims about the implications of neuroscience for criminal responsibility that cannot be conceptually or empirically sustained. It then applies the diagnostic lens of BOS to ...


Choice, Consent, And Cycling: The Hidden Limitations Of Consent, Leo Katz Feb 2006

Choice, Consent, And Cycling: The Hidden Limitations Of Consent, Leo Katz

Faculty Scholarship at Penn Law

Most legal scholars assume that if V consents to allow D to do something to him, such consent makes D's actions legally and morally acceptable. To be sure, they are willing to make an exception when consent is given under a specified list of conditions: Force, fraud, incompetence, third-party effects, unequal bargaining power, commodification, paternalism - all of these may be grounds for rejecting the validity of V's consent. We might call scholars who take this view of consent quasi-libertarians. In this Article, I argue against the quasi-libertarian view of consent. My central claim is that the validity of ...


Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman Jan 2006

Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Restorative Processes & Doing Justice, Paul H. Robinson Jan 2006

Restorative Processes & Doing Justice, Paul H. Robinson

Faculty Scholarship at Penn Law

No abstract provided.


Final Report Of The Maldivian Penal Law & Sentencing Codification Project: Text Of Draft Code (Volume 1) And Official Commentary (Volume 2), Paul H. Robinson, Criminal Law Research Group -- University Of Pennsylvania Jan 2006

Final Report Of The Maldivian Penal Law & Sentencing Codification Project: Text Of Draft Code (Volume 1) And Official Commentary (Volume 2), Paul H. Robinson, Criminal Law Research Group -- University Of Pennsylvania

Faculty Scholarship at Penn Law

The United Nations Development Programme and the Government of the Maldives commissioned the drafting of a penal code based upon existing Maldivian law, which meant primarily a codification of Shari'a. This is the Final Report of that codification project. A description of the process that produced this Report and the drafting principles behind it, as well as a discussion of the special challenges of codifying Islamic criminal law, are contained in an article at http://ssrn.com/abstract=941443.


Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse Jan 2006

Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse

Faculty Scholarship at Penn Law

No abstract provided.