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Legal Philosophy

University of Pennsylvania Carey Law School

Criminal Procedure

Articles 1 - 10 of 10

Full-Text Articles in Law

Punishment As Contract, Claire Oakes Finkelstein Jan 2011

Punishment As Contract, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment ...


A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein Oct 2006

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

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 ...


The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas Jan 2003

The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas Jan 2003

Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Positivism And The Notion Of An Offense, Claire Oakes Finkelstein Jan 2000

Positivism And The Notion Of An Offense, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

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 ...


The Inefficiency Of Mens Rea, Claire Oakes Finkelstein Jan 2000

The Inefficiency Of Mens Rea, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


When The Rule Swallows The Exception, Claire Oakes Finkelstein Jan 2000

When The Rule Swallows The Exception, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein Jan 1999

On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


Self-Defense As A Rational Excuse, Claire O. Finkelstein Jan 1996

Self-Defense As A Rational Excuse, Claire O. Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


Duress: A Philosophical Account Of The Defense In Law, Claire Oakes Finkelstein Jan 1995

Duress: A Philosophical Account Of The Defense In Law, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.