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Full-Text Articles in Law
Actmissions, Luis E. Chiesa
Actmissions, Luis E. Chiesa
Journal Articles
Most observers agree that it is morally worse to cause harm by engaging in an act than to contribute to producing the same harm by an omission. As a result, American criminal law punishes harmful omissions less than similarly harmful acts, unless there are exceptional circumstances that warrant punishing them equally. Yet there are many cases in which actors cause harm by engaging in conduct that can be reasonably described as either an act or an omission. Think of a doctor who flips a switch that discontinues life support to a patient. If the patient dies as a result, did …
The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson
The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson
All Faculty Scholarship
Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical conception of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert can transcend community, situation, and time to give a conception of justice that can be relied upon to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than can deontological desert because, contrary to common wisdom, there is a good deal of agreement …
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
All Faculty Scholarship
Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories of …
Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber
Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber
Publications
Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …
Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein
Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein
All Faculty Scholarship
No abstract provided.
Playing God: An Essay On Law, Philosophy, And American Capital Punishment, Samuel J. Levine
Playing God: An Essay On Law, Philosophy, And American Capital Punishment, Samuel J. Levine
Scholarly Works
This article looks at the capital sentencer's decision: Whether a death-eligible defendant will in fact receive the death sentence. Based in part on an examination of Jewish law and philosophy, Professor Levine identifies three particular areas in which it can be said that the Supreme Court requires the capital sentencer to "play God." First, capital sentencers are asked to ascertain the degree of a defendant's culpability by looking at factors that affect free will and victim impact evidence, implicating moral luck. Capital sentencers are also required to determine a person's total moral worth by considering character evidence. Finally, the Supreme …
Positivism And The Notion Of An Offense, Claire Oakes Finkelstein
Positivism And The Notion Of An Offense, Claire Oakes Finkelstein
All Faculty Scholarship
While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under …
Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon
Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon
Faculty Scholarship
Blackmail commentary continues to proliferate. One purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of blackmail literature, and to supply the connecting links that will allow us to see how various normative theories converge in condemning central case blackmail. Admittedly, the law criminalizes more than my central case. But once we recognize that the central case is neither puzzling nor paradoxical, it may be easier to handle the border cases that arise.