Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Excuse

Discipline
Institution
Publication Year
Publication
Publication Type

Articles 1 - 29 of 29

Full-Text Articles in Law

Is Executive Function The Universal Acid?, Stephen J. Morse Nov 2020

Is Executive Function The Universal Acid?, Stephen J. Morse

Faculty Scholarship at Penn Law

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to ...


Soft-Served Deserts: Soft Retributivism As A Free Will-Independent Alternative For The Criminal Justice System, Theodore Benson Randles Aug 2018

Soft-Served Deserts: Soft Retributivism As A Free Will-Independent Alternative For The Criminal Justice System, Theodore Benson Randles

Catholic University Law Review

Human free will is foundational to our criminal justice system, yet contemporary scientific understanding casts doubt on a robust sense of human free will. If a person’s actions are wholly determined by the laws of physics, is that person morally deserving of punishment? This Article argues that our criminal justice system can be put on a footing that is not threatened by physical determinism. It suggests that a coherent system of criminal punishment can be founded on Daniel Farrell’s notion of “weak retributivism.” The Article build on Farrell’s work and develops a system built up from the ...


Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse Jun 2016

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

Faculty Scholarship at Penn Law

This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the neuroscientific ...


Should The Law Convict Those Who Act From Conviction? Reflections On A Demands-Of-Conscience Criminal Defense, David Lefkowitz Jan 2016

Should The Law Convict Those Who Act From Conviction? Reflections On A Demands-Of-Conscience Criminal Defense, David Lefkowitz

Philosophy Faculty Publications

How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful ...


Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse Dec 2015

Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse

Faculty Scholarship at Penn Law

No abstract provided.


Neuroscience, Free Will, And Criminal Responsibility, Stephen J. Morse Jan 2015

Neuroscience, Free Will, And Criminal Responsibility, Stephen J. Morse

Faculty Scholarship at Penn Law

This chapter argues that the folk-psychological model of the person and responsibility is not challenged by determinism in general or by neurodeterminism in particular. Until science conclusively demonstrates that human beings cannot be guided by reasons and that mental states play no role in explaining behavior, the folk-psychological model of responsibility is justified. This chapter discusses the motivations to turn to science to solve the hard normative problems the law addresses, as well as the law's psychology and its concepts of the person and responsibility. Then it considers the general relation of neuroscience to law, which I characterize as ...


The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten Jan 2015

The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten

Faculty Scholarship at Penn Law

There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”

The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority ...


F13rs Sgr No. 10 (Ps-22 Amendments), Schwartzenburg, Triche Oct 2013

F13rs Sgr No. 10 (Ps-22 Amendments), Schwartzenburg, Triche

Student Senate Enrolled Legislation

No abstract provided.


Four Distinctions That Glanville Williams Did Not Make: The Practical Benefits Of Examining The Interrelation Among Criminal Law Doctrines, Paul H. Robinson Jan 2013

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

Faculty Scholarship at Penn Law

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 ...


S12rs Sgr No. 35 (More Attendance), Pace, Westbrook, Ecker, Frias, Anthony, Campbell, Woods, Miskatovic, Schwartzenburg Apr 2012

S12rs Sgr No. 35 (More Attendance), Pace, Westbrook, Ecker, Frias, Anthony, Campbell, Woods, Miskatovic, Schwartzenburg

Student Senate Enrolled Legislation

No abstract provided.


Genetics And Criminal Responsibility, Stephen J. Morse Jul 2011

Genetics And Criminal Responsibility, Stephen J. Morse

Faculty Scholarship at Penn Law

Some believe that genetics threatens privacy and autonomy and will eviscerate the concept of human nature. Despite the astonishing research advances, however, none of these dire predictions and no radical transformation of the law have occurred.


Severe Environmental Deprivation (Aka Rsb): A Tragedy, Not A Defense, Stephen J. Morse Jan 2011

Severe Environmental Deprivation (Aka Rsb): A Tragedy, Not A Defense, Stephen J. Morse

Faculty Scholarship at Penn Law

This article is a contribution to a symposium issue of the Alabama Civil Rights & Civil Liberties Law Review devoted to whether severe environmental deprivation, sometimes termed rotten social background, should be a defense to crime and why it has not been adopted. I begin by presenting the framework I apply for thinking about such problems. I then identify the main theses Professors Richard Delgado and Andrew Taslitz present and consider their merits. Next, I turn to the arguments of the other papers by Professors Paul Robinson, Erik Luna and Angela Harris. I make two general arguments: first, that SED or any other potentially powerful predisposing cause of crime should not per se be a defense to crime that excuses or mitigates criminal responsibility; and second, that criminal law defenses to responsibility are crucial to the just adjudication of guilt and innocence, but they are not an appropriate means to remedy undoubted social, biological, and psychological problems. I conclude that no jurisdiction has adopted the defense because it is conceptually unjustifiable and empirically unworkable. SED is a tragedy, but it should not be a defense to crime. Finally, I conclude with a number of criminal justice reform suggestions, including many that I believe the other writers would endorse.


Fighting Piracy With Private Security Measures: When Contract Law Should Tell Parties To Walk The Plank, Jennifer S. Martin Oct 2010

Fighting Piracy With Private Security Measures: When Contract Law Should Tell Parties To Walk The Plank, Jennifer S. Martin

American University Law Review

This Article addresses the following question: when should contract law permit parties to discontinue performance under a private security contract aimed to combat piracy? Piracy has been 'on the rise' off Somalia and in East Asia, with serious attacks escalating. Some shipping companies have responded by drafting 'best management practices', hiring security companies to advise on countering the threat and hiring armed or unarmed security protection. After presenting representative factual situations involving pirate attacks, the Article describes the traditional approach to defining the obligations of parties and the performance issues that arise during contractual performance. This approach takes into account ...


In Self-Defense Regarding Self-Defense: A Rejoinder To Professor Corrado, Reid G. Fontaine Jan 2010

In Self-Defense Regarding Self-Defense: A Rejoinder To Professor Corrado, Reid G. Fontaine

Reid G. Fontaine

This is a rejoinder to Professor Corrado in the upcoming special section of the American Criminal Law Review on the nature, structure, and function of self-defense and defense of others law.


Provoking Change: Comparative Insights On Feminist Homicide Law Reform, Carolyn B. Ramsey Jan 2010

Provoking Change: Comparative Insights On Feminist Homicide Law Reform, Carolyn B. Ramsey

Articles

The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for ...


Could Breach Of Contract Be Immoral?, Seana Shiffrin Jun 2009

Could Breach Of Contract Be Immoral?, Seana Shiffrin

Michigan Law Review

Some scholars defend the contract law's ban on punitive damage awards on the grounds that breach of contract, in itself, is not morally wrong. In this Article, I offer two responses. First, I refute one prevalent argument of Steven Shavell's in support of this view. Shavell argues that contractual breach is not immoral in those cases in which the legal regime would offer expectation damages because the contracting parties would not have agreed to require performance had they explicitly deliberated about the circumstances occasioning the breach. I criticize his argument for failing to justify this hypothetical-contract approach and ...


An Attack On Self-Defense, Reid G. Fontaine Jan 2009

An Attack On Self-Defense, Reid G. Fontaine

Reid G. Fontaine

Debate about the distinction between justification and excuse in criminal law theory has been lively during the last thirty years. Questions as to the nature and structure of various affirmative defenses continue to be raised, and the doctrine of self-defense has been at the center of much discussion. Three main articulations have been advanced: a purely objective theory, a purely subjective theory, and an objective/subjective hybrid. In the present Article, I support a hybrid model and propose a three-requirement framework that delineates the criteria that must be met to satisfy self-defense as a legitimate justification. Because this three-requirement framework ...


On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held Jan 2009

On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held

Reid G. Fontaine

A “cultural defense” to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values—the purported aim of the cultural defense—because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms—after all, justice systems are themselves cultural institutions. Furthermore, a defendant’s background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt ...


Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine, Jd, Phd Dec 2008

Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine, Jd, Phd

Reid G. Fontaine

For a number of reasons, including the complicated psychological nature of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been whether the defense is a partial justification or excuse. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate that even in circumstances in which there is no actual provocation, or the provocation is not sourced ...


Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa Jan 2008

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

Faculty Scholarship

This brief essay, written for the Criminal Law Conversations Project, examines whether one can justifiably kill a faultless, insane assailant to save oneself or another from imminent and serious harm. Although scholars on both sides of the Atlantic agree that the person attacked should not be punished for defending herself from the psychotic aggressor, there is significant disagreement with regards to whether the defensive response should be considered justified or merely excused. Furthermore, amongst those who argue that the appropriate defense in such cases is a justification, there is disagreement regarding whether the specific ground of acquittal should be self-defense ...


The Non-Problem Of Free Will In Forensic Psychiatry And Psychology, Stephen J. Morse Mar 2007

The Non-Problem Of Free Will In Forensic Psychiatry And Psychology, Stephen J. Morse

Faculty Scholarship at Penn Law

This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.


Disentangling The Psychology And Law Of Instrumental And Reactive Subtypes Of Aggression, Reid Griffith Fontaine Jan 2007

Disentangling The Psychology And Law Of Instrumental And Reactive Subtypes Of Aggression, Reid Griffith Fontaine

Reid G. Fontaine

Behavioral scientists have distinguished an instrumental (or proactive) style of aggression from a style that is reactive (or hostile). Whereas instrumental aggression is cold-blooded, deliberate, and goal driven, reactive aggression is characterized by hot blood, impulsivity, and uncontrollable rage. Scholars have pointed to the distinction between murder (committed with malice aforethought) and manslaughter (enacted in the heat of passion in response to provocation) in criminal law as a reflection of the instrumental–reactive aggression dichotomy. Recently, B. J. Bushman and C. A. Anderson (2001) argued that the instrumental–reactive aggression distinction has outlived its usefulness in psychology and pointed to ...


Looting, Law, And Lawlessness, Stuart Green Aug 2006

Looting, Law, And Lawlessness, Stuart Green

ExpressO

As recent incidents in the wake of Hurricane Katrina and other natural and man-made disasters have illustrated, the moral content of looting spans an extraordinarily wide continuum: At one end are predatory and exploitative acts that seem deserving of even greater punishment than ordinary acts of burglary and larceny. At the other end are cases of necessity, involving otherwise law-abiding citizens who, as a result of forces beyond their control, find themselves hungry and exposed to the elements. In between these two poles lies a wide range of conduct that often involves impoverished and alienated citizens living on the edges ...


Culture As Justification, Not Excuse, Elaine M. Chiu Jan 2006

Culture As Justification, Not Excuse, Elaine M. Chiu

Faculty Publications

The wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. This Article urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures. Currently, the criminal law deals with such acts of minority defendants ...


To Err Is Human, Keith A. Rowley Jan 2006

To Err Is Human, Keith A. Rowley

Scholarly Works

This essay reviews Allan Farnsworth's final book, Alleviating Mistakes: Reversal and Forgiveness for Flawed Perceptions (Oxford U. Press 2004). There are many kinds of mistakes. One kind - a rational, well-intended decision or act that results in unanticipated, negative consequences - was the principal subject of Allan Farnsworth's previous foray into the realm of contractual angst: Changing Your Mind: The Law of Regretted Decisions (Yale U. Press 1998). Another kind - the subject of this book - is a mistake caused by an inaccurate, incomplete, or incompetent mental state at the time of an act or decision that results in unanticipated, negative ...


An Attitudinal Theory Of Excuse In Criminal Law, Peter Westen Aug 2004

An Attitudinal Theory Of Excuse In Criminal Law, Peter Westen

ExpressO

The mother lode of criminal law scholarship is a unitary theory of excuses, that is, a normative account as to why a person who engages in conduct that a criminal statute prohibits ought nevertheless not be blamed for it. After defining "excuse" against commentators who argue that it cannot be coherently defined, and after criticizing competing theories of excuse, I argue that the feature that renders persons normatively blameless -- and, typically, legally blameless, too -- for engaging in conduct that a criminal statute prohibits is the possession of a certain attitude with which he engages in it. A person is normatively ...


Ignorance Of The Law: Should It Excuse Violations Of Certain Federal Restrictions On The Possession Of Firearms?, Thomas L. Fowler Apr 2001

Ignorance Of The Law: Should It Excuse Violations Of Certain Federal Restrictions On The Possession Of Firearms?, Thomas L. Fowler

Campbell Law Review

Are thousands of North Carolinians violating federal criminal law every day without knowing it even though such violations may subject them to imprisonment for up to ten years and a fine of up to $250,000? Ignorance of the law is generally held not to excuse criminal conduct, but can such ignorance ever be so reasonable and predictable as to constitute a legitimate excuse? Are some laws so obscure, technical, counter-intuitive, or hard to discover that ignorance of the law will be a defense?


Justice, Liability, And Blame: Community Views And The Criminal Law, Paul H. Robinson, John M. Darley Jan 1995

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

Faculty Scholarship at Penn Law

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 ...


The Dilemma Of The Intimidated Witness In Federal Organized Crime Prosecutions: Choosing Among The Fear Of Reprisals, The Contempt Powers Of The Court, And The Witness Protection Program, Stuart Mass Jan 1982

The Dilemma Of The Intimidated Witness In Federal Organized Crime Prosecutions: Choosing Among The Fear Of Reprisals, The Contempt Powers Of The Court, And The Witness Protection Program, Stuart Mass

Fordham Law Review

No abstract provided.