Law Commons^™

Negligence And Culpability: Reflections On Alexander And Ferzan, Mitchell N. Berman

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Philosophers of criminal punishment disagree about whether infliction of punishment for negligence can be morally justified. One contending view holds that it cannot be because punishment requires culpability and culpability requires, at a minimum, advertence to the facts that make one’s conduct wrongful. Larry Alexander and Kim Ferzan are prominent champions of this position. This essay challenges that view and their arguments for it. Invoking a conceptual distinction between an agent’s being blameworthy for an act and their deserving punishment (or suffering) for that act, it explains that an agent can be blameworthy for negligent conduct, and thus liable to …

Dworkin Versus Hart Revisited: The Challenge Of Non-Lexical Determination, Mitchell N. Berman

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A fundamental task for legal philosophy is to explain what makes it the case that the law has the content that it does. Anti-positivists say that moral norms play an ineliminable role in the determination of legal content, while positivists say that they play no role, or only a contingent one. Increasingly, scholars report finding the debate stale. This article hopes to freshen it by, ironically, revisiting what might be thought its opening round: Dworkin’s challenge to Hartian positivism leveled in The Model of Rules I. It argues that the underappreciated significance of Dworkin’s distinction between rules and principles is …

Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman

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For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

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The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

Criminal Law’S Core Principles, Paul H. Robinson

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Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this “blank slate” conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.

Many writers dispute that such core principles …

Undemocratic Crimes, Paul H. Robinson, Jonathan C. Wilt

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One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment. This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice. Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of common …

The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb

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The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby …

Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

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In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a large collection …

Proportionality, Constraint, And Culpability, Mitchell N. Berman

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Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones. This essay proposes that these differences cannot be successfully adjudicated, and one …

Blameworthiness, Desert, And Luck, Mitchell N. Berman

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Philosophers disagree about whether outcome luck can affect an agent’s “moral responsibility.” Focusing on responsibility’s “negative side,” some maintain, and others deny, that an action’s results bear constitutively on how “blameworthy” the actor is, and on how much blame or punishment they “deserve.” Crucially, both sides to the debate assume that an actor’s blameworthiness and negative desert are equally affected—or unaffected—by an action’s results. This article challenges that previously overlooked assumption, arguing that blameworthiness and desert are distinct moral notions that serve distinct normative functions: blameworthiness serves a liability function (removing a bar to otherwise impermissible treatments), whereas desert serves …

#Believewomen And The Presumption Of Innocence: Clarifying The Questions For Law And Life, Kimberly Kessler Ferzan

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The presumption of innocence and #BelieveWomen both embody compelling considerations, and we may wonder how to reconcile them. My project does not aim to reconcile the positions, but rather, it is prior to it. My goal in this paper is to better explicate the claims that underlie both #BelieveWomen and the presumption of innocence in law and life, as well as to identify instances in which cross-pollination, between our everyday evaluations and the legal system, is contaminating our thinking.

First, I begin with #BelieveWomen and sort through various ways to interpret this demand (though my survey is not exhaustive). I …

A Truce In Criminal Law's Distributive Principle Wars?, Paul H. Robinson

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Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs.

It is argued here that the two are in fact reconcilable, in a fashion. …

Against The Received Wisdom: Why The Criminal Justice System Should Give Kids A Break, Stephen J. Morse

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Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about …

Autonomy, Gideon Parchomovsky, Alex Stein

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Personal autonomy is a constitutive element of all rights. It confers upon a rightholder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a rightholder of a choice that was rightfully hers — the choice as to how to go about her life.

Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a rightholder without securing her permission or, worse, …

Of Law And Other Artificial Normative Systems, Mitchell N. Berman

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Different theories of law are situated within different pictures of our normative landscape. This essay aims to make more visible and attractive one picture that reflects basic positivist sensibilities yet is oddly marginalized in the current jurisprudential literature. The picture that I have in mind tries to vindicate surface appearances. It maintains that the social world is densely populated by countless normative systems of human construction (“artificial normative systems”) whose core functions are to generate and maintain norms (oughts, obligations, powers, rights, prohibitions, and the like). The norms that these systems output are conceptually independent from each other, and may …

Rethinking Copyright And Personhood, Christopher S. Yoo

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One of the primary theoretical justifications for copyright is the role that creative works play in helping develop an individual’s sense of personhood and self-actualization. Typically ascribed to the writings of Immanuel Kant and Georg Wilhelm Friedrich Hegel, personhood-based theories of copyright serve as the foundation for the moral rights prominent in European copyright law and mandated by the leading intellectual property treaty, which give authors inalienable control over aspects of their works after they have been created. The conventional wisdom about the relationship between personhood and copyright suffers from two fatal flaws that have gone largely unappreciated. First, in …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

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Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

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Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe

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In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms, …

The Ethics Of Medicaid’S Work Requirements And Other Personal Responsibility Policies, Harald Schmidt, Allison K. Hoffman

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Breaking controversial new ground, the Centers for Medicare & Medicaid Services (CMS) recently invited states to consider establishing work requirements as a condition of receiving Medicaid benefits. Noncompliant beneficiaries may lose some or all benefits, and if they do, will incur higher spending if they have to pay for medical care out of pocket. Current evidence suggests work requirements and related policies, which proponents claim promote personal responsibility, can create considerable risks of health and financial harm in vulnerable populations. Concerns about implementing these policies in Medicaid have been widely expressed, including by major physician organizations, and others have examined …

Our Principled Constitution, Mitchell N. Berman

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Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …

Patty Hearst Reconsidered: Personal Identity In The Criminal Law, Kimberly Kessler Ferzan

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In this contribution to a symposium celebrating Joshua Dressler, I revisit the Dressler/Delgado debate over Patty Hearst through the prism of personal identity. After reviewing why personal identity presents a problem for punishment, I discuss how a "personal identity" defense would fit within the criminal law, including when it would undermine status responsibility, when it would undermine a voluntary act, and when it would serve as an excuse.

Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman

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This article marks the 30th anniversary of the Supreme Court of New Jersey’s Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature.

First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can be …

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

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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 acts for that reason, …

Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan

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Many retributivists maintain that when a defendant commits an offense, (1) the defendant forfeits rights against punishment and (2) it is intrinsically good for the defendant to get the punishment he deserves. Self-defense theorists often maintain that when certain conditions are met, (1) an aggressor forfeits his rights against defensive force and (2) the aggressor may be harmed instrumentally to prevent his attack. In the context of a symposium on Uwe Steinhoff’s "Just War Theory," this paper examines the intersection of defense and desert. First, may desert and defense be aggregated when, for instance, the amount of harm that is …

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

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This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …

For Legal Principles, Mitchell N. Berman

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Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.

In …

Pretrial Detention And Bail, Megan Stevenson, Sandra G. Mayson

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Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who …

Strict Liability's Criminogenic Effect, Paul H. Robinson

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It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails …

How Being Right Can Risk Wrongs, Paul H. Robinson, Sarah M. Robinson

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This is a chapter from the new book The Vigilante Echo. Previous chapters have made clear that some vigilantism can be morally justified where the government has failed in its promise under the social contract to protect and to do justice. But this chapter explains how even moral vigilante action can be problematic for the larger society. Vigilantes may try to do the right thing but are likely to lack the training and professional neutrality of police. They may be successful, but only on pushing the crime problem to an adjacent neighborhood. Because their open lawbreaking may seem admirable …