Legal Theory Commons^™

A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen

San Diego Law Review

This Article argues that the presumption that an actor will be law-abiding, like the right to liberty itself, can be forfeited by criminal actions. In other words, the point is to argue that a just punishment could involve loss of the status of being a beneficiary of this presumption just as much as it could involve the loss of liberty.

In Part II, I introduce a basic framework for detention consistent with respect for autonomy and locate the lost status view within that framework. In Part III, I spell out the lost status view in more detail and contrast it …

Inchoate Crimes At The Prevention/Punishment Divide, Kimberly Kessler Ferzan

San Diego Law Review

In this Article, I argue that inchoate crimes are best dealt with under a preventive regime. Part II argues that inchoate crimes and preparatory offenses are primarily aimed at preventing a harm and not at punishing those who deserve it. It also revisits concerns with punishing incomplete attempts that Larry Alexander and I have voiced previously. Part III considers Alec Walen's recent proposal to combat terrorism through the criminalization of threats as an inchoate offense. It also addresses general concerns with Walen's proposal and claims that Walen does not resolve the problems with inchoate criminality set forth in Part II. …

Gender Inequality In The Law: Deficiencies Of Battered Woman Syndrome And A New Solution To Closing The Gender Gap In Self-Defense Law, Meredith C. Doyle

CMC Senior Theses

Dr. Lenore Walker developed battered woman syndrome to address the issue of domestic violence and to give battered women a defense in situations in which they kill their abusive partners when they are not overtly threatening them. Self-defense law is based on male on male combat. Women are less able to protect themselves in an attack by a man, and so they may preemptively attack their sleeping partners to avoid a situation in which they cannot adequately protect themselves. Battered woman syndrome explains why these battered women act in a way that is irrational to a non-battered person. Walker's theory …

Honest-Services Fraud: A (Vague) Threat To Millions Of Blissfully Unaware (And Non-Culpable) American Workers, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The author believes that statute 18 U.S.C. § 1346 is unconstitutionally vague, at least as applied to cases in which employees of private entities are prosecuted for depriving their employers of a right to their honest services (so-called “private cases”). Objections to vagueness rest on due process. “Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” The Supreme Court’s vagueness precedents do not provide much …

Exporting U.S. Criminal Justice, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

This article explores how and why, in the Cold War’s wake, the U.S. government began to export U.S.-style criminal law and procedure models to developing and politically transitioning states. U.S. criminal law and development consultants now work in countries across the globe. This article reveals how U.S. initiatives have shaped state and non-state actors’ responses to a range of global challenges, even as this approach suffers from a deep democratic deficit. Further, this article argues that U.S. programs perpetuate U.S.-style legal institutional idolatry (which is often tied to systemic dysfunction both in the United States and abroad), and in so …

Teaching Tips: Personal Criminal History Analysis Paper, Gordon Crews, Angela Crews

Criminal Justice Faculty Research

Students often have difficulty visualizing the practical application of criminological theory. The following activity assists instructors to develop students‘ abilities in evaluating behaviors and determining the theoretical perspectives that potentially could be used to explain those behaviors. It also is designed to assist students in comprehending how their own experiences impact their views on law-violating behavior and its etiology. This exercise facilitates students‘ awareness of how their beliefs about the causes of law-violating behavior inevitably impact their beliefs about potential solutions or responses to this type of behavior. Eventually, students unfailingly begin to realize the artificial dichotomy between us, as …

Why Is It A Crime To Stomp On A Goldfish? - Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa

Journal Articles

No abstract provided.

After The Reasonable Man: Getting Over The Subjectivity Objectivity Question, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article challenges the conventional notion of the “reasonable man.” It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the reasonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective standard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular …

Nietzsche In Law's Cathedral: Beyond Reason And Postmodernism, John Linarelli

Scholarly Works

Nietzsche had very little to say about law and what he did say is fragmentary and sporadic. Nietzsche's philosophy, however, offers a basis for theorizing about law. I use Nietzsche's important works to interpret two major movements in legal thought. The first part of the paper examines how Nietzsche's philosophy augments our understanding of deontological theories about the law. Nietzsche produced a substantial ethical theory. The second part of the paper examines how Nietzsche's philosophy helps us to understand law and economics. Nietzsche had a great deal to say about the intellectual predecessor to law and economics, utilitarianism, and his …

The Cognitive Components Of Punishment, Jeffrey J. Rachlinski, Forest Jourden

Cornell Law Faculty Publications

Trends. Death Penalties For Purveyors Of Death? Not For Many Terrorists, Ibpp Editor

International Bulletin of Political Psychology

This article discusses the nuances surrounding the use of the death penalty in terrorism cases.

From Lovercamp To A Prisoner's Right To Escape: An Inescapable Conclusion?, Rodney L. Schermer

Buffalo Law Review

No abstract provided.

Retribution In A Modern Penal Law: The Principle Of Aggravated Harm, Ronald J. Allen

Buffalo Law Review

No abstract provided.

Sanctions And Deviance: Another Look, Herbert Kritzer

IUSTITIA

In the past several years, there has been an extended dialogue in the literature concerning the question of the efficacy of sanctions as a means of deterring criminal behavior. There is some convincing evidence that threatened sanctions can and do deter some forms of behavior, such as parking violations and income tax evasion. Do these findings extend to other forms of behavior which our society has defined as criminal? This issue is considered by Gibbs in an article which appeared to find a clear link between the certainty and severity of sanctions and the murder rate. Gibbs' article stimulated additional …

The Eighth Amendment, Beccaria, And The Enlightenment: An Historical Justification For The Weems V. United States Excessive Punishment Doctrine, Deborah A. Schwartz, Jay Wishingrad

Buffalo Law Review

No abstract provided.

Punishment For Negligence: A Reply To Professor Hall, James B. Brady

Buffalo Law Review

No abstract provided.

California Narcotic Rehabilitation: De Facto Prison For Addicts, John L. Roche, James C. Rothwell

San Diego Law Review

This note discusses the history and status of California's statutory plans for coping with the narcotic addiction problem.

Felony-Murder - Surviving Co-Felons Are Punishable For First Degree Murder Under California Penal Code Section 189 For The Killing Of A Confederate By The Owner Of The Store Which They Were Robbing (People V. Hand, Cal. 1963), Robert C. Baxley

San Diego Law Review

In the process of executing a planned robbery of a store, one of four robbers was killed by the owner. The store had been previously robbed and the owner was waiting for such a recurrence. Held, on demurrer to the indictment, the surviving felons were punishable for first degree murder because the legislature intended this fact situation to be within the purview of section 189 and because of a strong public policy as a deterrent to violent felonies. People v. Hand, Crim. No. 5471, Super. Ct., San Diego (July 22, 1963).