Law Commons^™

Protecting Liberty And Autonomy: Desert/Disease Jurisprudence, Stephen J. Morse

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This contribution to a symposium on the morality of preventive restriction on liberty begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the use …

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

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Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Mental Disorder And Criminal Law, Stephen J. Morse

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Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, are treated specially. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal …

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

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This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no …

The Unsolved Mysteries Of Causation And Responsibility, Kimberly Kessler Ferzan

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This article is part of a symposium on Michael Moore's Causation and Responsibility. In Causation and Responsibility, Moore adopts a scalar approach to factual causation, with counterfactual dependency serving as an independent desert basis. Moore’s theory of causation does not include proximate causation. The problem with Moore's argument is that the problems with which proximate causation dealt - how and when to limit cause in fact - remain unresolved. In this paper, I focus on two sets of problems. The first set is the “fit” or categorization problems within the criminal law. I focus on three matches: (1) the fit …

Realizing Padilla's Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Conviction, Yolanda Vazquez

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On March 31, 2010 the United States Supreme court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to advise defendants of the immigration consequences of a criminal conviction. While Padilla answered the broad question of whether there is a duty to advise a defendant under the Sixth Amendment, it left many questions unanswered. One critical inquiry is how defense attorneys and the courts will determine what advice concerning the immigration consequences of the criminal conviction will satisfy defense counsels’ Sixth Amendment duty under Padilla.

This Article discusses the potential detrimental impact of Padilla’s ambiguous …

Criminalization Tensions: Empirical Desert, Changing Norms, And Rape Reform, Paul H. Robinson

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This short Article is part of the organizers’ larger Criminalization Project, which seeks, among other things, to develop theories for how criminalization decisions should be made. The argument presented here is that there is instrumentalist, as well as deontological, value in having criminalization decisions that generally track the community’s judgments about what is sufficiently condemnable to be criminal, but that there are also good reasons to deviate from community views. Interestingly, those in the business of social reform may be the ones with the greatest stake in normally tracking community views, in order to avoid community perceptions of the criminal …

Mercy, Crime Control, And Moral Credibility, Paul H. Robinson

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If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the more …

Advantaging Aggressors: Justice & Deterrence In International Law, Paul H. Robinson, Adil Ahmad Haque

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Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its …