Law Commons^™

Violence On The Brain: A Critique Of Neuroscience In Criminal Law, Amanda C. Pustilnik

Faculty Scholarship

Is there such a thing as a criminally "violent brain"? Does it make sense to speak of "the neurobiology of violence" or the "psychopathology of crime"? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances?

This Article first demonstrates parallels between certain current claims about the neurobiology of criminal violence and past movements that were concerned with the law and neuroscience of violence: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a substantive review and critique of several current claims about the neurological bases …

Spreigl Evidence: Still Searching For A Principled Rule, Ted Sampsell-Jones

Faculty Scholarship

This article first examines how Minnesota’s character evidence doctrine developed, with a particular focus on the historical confusion regarding the propriety of the propensity inference. It then examines current case law and argues that Minnesota’s current Spreigl doctrine routinely allows propensity evidence. It finally proposes a choice between abandoning the current Spreigl doctrine and repealing the character rule itself. The author takes no position on which alternative should be chosen, but either is better than the status quo. The current doctrine in Minnesota is a Potemkin village.

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph

Faculty Scholarship

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid …

Rethinking Criminal Law And Family Status , Dan Markel, Ethan J. Leib, Jennifer M. Collins

Faculty Scholarship

In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (OUP 2009), we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their review essays, Professors Alafair Burke, Alice Ristroph & Melissa Murray identify a series of concerns with the framework we offer policymakers to analyze these family ties benefits or burdens. We think it worthwhile not only to clarify where those challenges rest on misunderstandings or confusions about the central features of our views, but also to show the …

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey

Faculty Scholarship

The articles collected in this Symposium Issue on Legal Outsiders in American Film are examples of a turn in legal scholarship toward the analysis of culture. The cultural turn in law takes as a premise that law and culture are inextricably intertwined. Common to the project of law and culture is how legal and cultural discourse challenge or sustain communities, identities and relations of power. In this vein, each of the articles in this Symposium Issue look closely at a film or a set of films as cultural objects which, when engaged critically, help us think about law as an …

Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa

Faculty Scholarship

This chapter presents an authoritative overview of self-defense against the psychotic aggressor. More specifically, it examines whether one can justifiably kill a faultless, insane assailant to save himself or another from imminent and serious harm. It considers the disagreement among scholars as to whether the defensive response should be considered justified or merely excused, or whether the specific ground of acquittal should be self-defense or necessity. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as proportionality, self-defense against wrongful attack, justification of homicide against innocent aggressors without …

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt

Faculty Scholarship

This chapter presents an authoritative overview of punishment, with particular emphasis on the limits of reason and the virtue of randomization. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the Enlightenment ideal of social engineering through punishment and the role of chance in the administration of criminal justice.