Law Commons^™

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Defending Honor And Beyond: Reconsidering The Relationship Between Seemingly Futile Defense And Permissible Harming, Kimberly Kessler Ferzan

All Faculty Scholarship

In Helen Frowe's book, Defensive Killing, she argues that some cases of seemingly futile self-defense are actually instances of justifiable defense of the victim's honor. This paper explores Frowe's claim, first by isolating the central cases and then by examining her rejection of punitive reasons. From there, the paper examines Frowe's understanding of "defense of honor," ultimately suggesting that Frowe's conception is best construed as action that has expressive, but not defensive, value. From there, I turn to two more general puzzles. First, what if the defender mistakenly believes that she can successfully defend and acts for that reason, …

The Inevitability And Ubiquity Of Cycling In All Feasible Legal Regimes: A Formal Proof, Leo Katz, Alvaro Sandroni

All Faculty Scholarship

Intransitive choices, or cycling, are generally held to be the mark of irrationality. When a set of rules engenders such choices, it is usually held to be irrational and in need of reform. In this article, we prove a series of theorems, demonstrating that all feasible legal regimes are going to be rife with cycling. Our first result, the legal cycling theorem, shows that unless a legal system meets some extremely restrictive conditions, it will lead to cycling. The discussion that follows, along with our second result, the combination theorem, shows exactly why these conditions are almost impossible to meet. …

Firepower To The People: Gun Rights & Self-Defense To Curb Police Misconduct, Spearit

Articles

This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace …

Self-Defense: Tell Me Moore, Kimberly Kessler Ferzan

All Faculty Scholarship

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 …

Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan

All Faculty Scholarship

The use of the term, "self-defense, " covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, "I am going to kill you," the aggressor's behavior forfeits the aggressor's right against the defender's infliction of harm that is intended to repel the aggressor's attack. Because the right is forfeited, numbers do not count (the …

Beyond Crime And Commitment: Justifying Liberty Deprivations Of The Dangerous And Responsible, Kimberly Kessler Ferzan

All Faculty Scholarship

The traditional approaches to dangerous persons have been crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: The state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this gap, the criminal law’s boundaries have expanded to include preparatory offenses and early inchoate conduct that are deserving of only minimal, if any, punishment in attempt to incarcerate the dangerous. Meanwhile, the Supreme Court’s effort to articulate a test of mental disease warranting involuntary confinement of sexual predators has failed …

Self-Defense, Permissions, And The Means Principle: A Reply To Quong, Kimberly Kessler Ferzan

All Faculty Scholarship

In “Killing in Self-Defense” (119 Ethics 507 (2009)), Jonathan Quong claims that one may kill innocent aggressors and threats in self-defense, but he denies that it follows from his position that innocent bystanders may also be killed when one acts defensively. Quong argues that defenders have an agent-relative permission to favor their own lives over others’. However, there are moral constraints, including that one may not “use someone as a mere means,” and Quong claims that it is this constraint that prohibits the killing of innocent bystanders. To reach this conclusion, Quong construes the “means principle” quite broadly to include …

Self-Defense And The State, Kimberly Kessler Ferzan

All Faculty Scholarship

This article is a contribution to a symposium honoring Sandy Kadish. This article seeks to explore whether and to what extent our understanding of self-defense depends upon a citizen's relationship with the state. Part II begins by setting forth Professor Kadish's claim that self-defense is "a right to resist aggression" that is held by a citizen against the state. After contending that such an account is insufficient to justify self-defense, the remainder of the article seeks to explore the relationship between the state and self-defense. Part III argues that self-defense is a pre-political moral right, as opposed to a political …

The Rhetoric Of Self Defense, Janine Young Kim

Janine Kim

Defending Imminence: From Battered Women To Iraq, Kimberly Kessler Ferzan

All Faculty Scholarship

The war against Iraq and nonconfrontational killings by battered women are two recent examples of a more general theoretical problem. The underlying question is when may a defender act in self-defense. While some nineteenth century common law cases vested the rights in the defender, arguing that it was unfair to force her to live in fear, contemporary domestic and international law cast the balance decidedly on the side of the aggressor, by forcing the defender to wait until the aggressor's attack is imminent. The Bush Administration and the battered woman simply ask whether the pendulum swung too far in the …