Law Commons^™

Standing In Reserve: A New Model For Hard Cases Of Complicity, Nicholas Almendares, Dimitri Landa

Articles by Maurer Faculty

The “hard cases” for the law relating to accomplices deal with the definition of what counts as aiding and abetting a crime. A retailer might sell a murder weapon in the ordinary course of business, while an accomplice might do nothing because their help was simply not needed. How do we distinguish between these cases? The Capitol Riot is a striking example of this sort of hard case because there were so many people involved in so many different and ambiguous ways. Outside of the conceptually easy cases of someone caught on camera making off with property or attacking officers, …

Sexual Assault Enablers, Institutional Complicity, And The Crime Of Omission, Amos N. Guiora

Utah Law Faculty Scholarship

Sex abuse, particularly of children, is a crime which any rational person would wish to prevent. However, when an individual’s loyalties and responsibilities to an institution put them at odds with preventing sex abuse, it is far too often the institution which takes precedence. This is the grim phenomenon of institutional complicity. It is a plague which, sadly, permeates institutions of all types, be it a school, hospital, sports team, church, military, or government agency. It also permeates countries as a global issue.

I have interviewed dozens of survivors who suffered under an abuser who was protected by an institution. …

The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa

Journal Articles

In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only 15 months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us …

Rosemond, Mens Rea, And The Elements Of Complicity, Kit Kinports

Journal Articles

The confluence of two widely invoked federal statutes – one governing accomplice liability, the other imposing a sentencing enhancement when firearms are involved in a violent or drug-trafficking crime – reached the Supreme Court this past Term in Rosemond v. United States. The Court’s analysis of the mens rea issues raised in that case starkly illustrates the confusion characterizing this area of complicity law, which has attracted surprisingly little attention from courts, legislators, or scholars. The lack of clarity is particularly acute for crimes like the weapons offense in Rosemond that can plausibly be interpreted to include a circumstance element. …

Four Distinctions That Glanville Williams Did Not Make: The Practical Benefits Of Examining The Interrelation Among Criminal Law Doctrines, Paul H. Robinson

All Faculty Scholarship

While Glanville Williams was a pioneer in his time, he remained quite mainstream when it came to the framework for organizing criminal law doctrines. His books were influential and he could have helped reshaped that framework but was content to leave it as essentially that which evolved at common law, even though many improvements could have be made. For example, he was well aware of the justification-excuse distinction but rejected it as an organizing principle, not because he did not see the distinction as rational, but because he did not see it as having practical value.

This essay attempts to …

Making The Best Of Felony Murder, Guyora Binder

Journal Articles

Although scorned as irrational by academics, the felony murder doctrine persists as part of our law. It is therefore important that criminal law theory show how the felony murder doctrine can be best justified, and confined within its justifying principles. To that end, this Article seeks to make the best of American felony murder laws by identifying a principle of justice that explains as much existing law as possible, and provides a criterion for reforming the rest. Drawing on the moral intuition that blame for harm is properly affected by the actor’s aims as well as the actor’s expectations, this …

Joint Criminal Confusion, Jens David Ohlin

Cornell Law Faculty Publications

Article 25 on individual criminal responsibility has generated more conflicting interpretations than any other provision in the Rome Statute. Part of the problem is that it is impossible to construct a coherent and nonredundant interpretation of Article 25(3)(d) on group complicity. Because of unfortunate drafting, both the required contribution and the required mental element are impossible to discern from the inscrutable language. As a result, it is nearly impossible to devise a holistic interpretation of Article 25(3)(d) that fits together with the rest of Article 25 and Article 30 on mental elements. One possible solution is to repair Article 25 …

Complicity, Critique And Methodology, Fiona Probyn-Rapsey

Faculty of Law, Humanities and the Arts - Papers (Archive)

Contemporary cultural texts point towards the acknowledgment of complicity as a starting point for engagement with Others, with the world, readers, and histories that energize them.Here I discuss the critical role that complicity (both as an act and as a concept) plays in drawing out the complex interrelationships between historical pasts and present.

Paternalism And Complicity: Or How Not To Atone For The 'Sins Of The Father', Fiona Probyn-Rapsey

Faculty of Law, Humanities and the Arts - Papers (Archive)

The cultural politics of Australian colonialism revolve around discourses of paternalism and the ' protection' of Aboriginal people. Understanding how paternalism reproduces itself transgenerationally, and between whites and Aboriginal people, between subordinated groups, between women, is one way to approach its limits. Starting with this premise, I examine the ways in which paternalism reproduces itself, such that even today white paternalistic attitudes towards Aboriginal people and culture are pervasive. I focus here on Mary Ellen Jordan' s Australian memoir Balanda: My Year in Arnhem Land (2005), which is critical of, and complicit with, the biopolitical power of paternalism and its …

Helping, Doing, And The Grammar Of Complicity, Daniel B. Yeager

Faculty Scholarship

This essay is about the grammatical and, to a lesser extent, moral aspects of the law of complicity, which treats someone who helps someone else commit a crime as though the helper himself committed the crime. The point I hope to make here is similar to the one Professor Phillip Johnson made about what he called "the unnecessary crime of conspiracy."

Justice, Liability, And Blame: Community Views And The Criminal Law, Paul H. Robinson, John M. Darley

All Faculty Scholarship

This book reports empirical studies on 18 different areas of substantive criminal law in which the study results showing ordinary people’s judgments of justice are compared to the governing legal doctrine to highlight points of agreement and disagreement. The book also identifies trends and patterns in agreement and disagreement and discusses the implications for the formulation of criminal law. The chapters include:

Chapter 1. Community Views and the Criminal Law (Introduction; An Overview; Why Community Views Should Matter; Research Methods)

Chapter 2. Doctrines of Criminalization: What Conduct Should Be Criminal? (Objective Requirements of Attempt (Study 1); Creating a Criminal Risk …

Colorado Law Concerning Accomplices And Complicity, Marianne Wesson

Publications

No abstract provided.

Criminal Law Revision In Kentucky: Part I—Homicide And Assault, Robert G. Lawson

Law Faculty Scholarly Articles

At the present time the Kentucky Commission on Law Enforcement and Crime Prevention and the Legislative Research Commission are jointly engaged in a project designed to revise the state's substantive criminal law. This effort is justifiable only if the existing law is defective and the "revision will result in significant improvement in [criminal law] administration." A cursory examination of the criminal statutes, with no reference to case law, leaves not the slightest doubt as to the need for revision. Until now no major attempt at revision has ever been undertaken in this state. As a consequence, the statutes are devoid …