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Full-Text Articles in Law
Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas
Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas
All Faculty Scholarship
Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed …
Blaming As A Social Process: The Influence Of Character And Moral Emotion On Blame, Janice Nadler
Blaming As A Social Process: The Influence Of Character And Moral Emotion On Blame, Janice Nadler
Faculty Working Papers
For the most part, the law eschews the role of moral character in legal blame. But when we observe an actor who causes harm, legal and psychological blame processes are in tension. Procedures for legal blame assume an assessment of the actor's mental state, and ultimately of responsibility, that is independent of the moral character of the actor. In this paper, I present experimental evidence to suggest that perceptions of intent, foreseeability, and possibly causation can be colored by independent reasons for thinking the actor is a bad person, and are mediated by the experience of negative moral emotion. Our …