Law Commons^™

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 …

Self-Defense: Tell Me Moore, Kimberly Kessler Ferzan

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Although Michael Moore has theorized much of the criminal law, he has left self-defense virtually untouched. This festschrift chapter sets forth the current debates within self-defense theory. It then pieces together Moore’s views about these puzzles, arguing that Moore adopts a distributive view of self-defense whereby an innocent victim may redistribute harm to its culpable or innocent cause. The chapter then questions some of Moore’s claims, including how Moore grounds the self-defensive right against innocent aggressors and threats, whether self-defense is best viewed as a mechanism for harm distribution, and whether Moore needs something like the forfeiture concept that he …

Epilogue: The New Deal At Bay, Herbert J. Hovenkamp

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The Opening of American Law examines changes in American legal thought that began during Reconstruction and the Gilded Age, and extending through the Kennedy/Johnson eras. During this period American judges and legal writers embraced various conceptions of legal "science," although they differed about what that science entailed. Beginning in the Gilded Age, the principal sources were Darwinism in the biological and social sciences, marginalism in economics and psychology, and legal historicism. The impact on judicial, legislative, and later administrative law making is difficult to exaggerate. Among the changes were vastly greater use of behavioral or deterrence based theories of legal …

The Disutility Of Injustice, Paul H. Robinson, Geoffrey P. Goodwin, Michael Reisig

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For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment. That shift to desert has prompted concerns by two …

Restoration But Also More Justice, Stephanos Bibas

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This short essay replies to Erik Luna's endorsement of restorative justice. He is right that the goal of healing victims, defendants, and their families is important but all too often neglected by substantive criminal law and procedure, which is far too state-centered and impersonal. The problem with restorative justice is that too often it seeks to sweep away punishment as barbaric and downplays the need for deterrence and incapacitation as well. In short, restorative justice deserves more of a role in American criminal justice. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach …

Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas

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The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child …