SelectedWorks @ Rutgers School of Law-Newark
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What is Wrong with Tax Evasion?
No full textThis talk, originally delivered at a University of Houston symposium on tax crimes, asks why the norms that underlie our laws against tax evasion are so seemingly unstable. Ten reasons are offered: (1) tax evasion is difficult to distinguish from tax avoidance, (2) the conduct that underlies the crime of tax evasion is complex, (3) choate and inchoate liability are conflated, (4) a heightened mens rea of willfulness is required, (5) the level of enforcement is low, (6) enforcement practices are arbitrary and uneven, (7) criminal and civil violations are not clearly distinguished, (8) there is a sense that everyone else is doing it, (9) taxes are demonized in our political culture, and (10) the tax code is perceived as unfair and tax revenues are thought to be misused. It is also suggested that part of the reason the norms against tax evasion are so unstable is that there is confusion about exactly why tax evasion should be regarded as morally wrong. To that end, the debate over the moral content of tax evasion is revisited and extended
Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law
No full textThis article challenges the legal rule according to which the victim’s conduct is irrelevant to the determination of the perpetrator’s criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed. Part I tests the descriptive accuracy of the proposition that the perpetrator’s liability does not depend on the conduct of the victim. Criminological and victimological studies strongly suggest that criminal liability may be properly evaluated only in the context of the victim-perpetrator interaction. Moreover, criminal law itself has a number of doctrines, such as consent, self-defense and (to some degree) provocation, which include victims’ actions in the determination of perpetrators’ liability. Part II makes a normative claim that victims’ actions should reduce or eliminate the perpetrator’s liability in all appropriate cases and not merely in the context of a few distinct defenses. This claim draws on: (a) the just desert principle which requires that individuals be punished only for the amount of harm caused by them and not by the victim himself; (b)the efficiency principle, which requires that, in order to preserve the moral authority of criminal law, penal sanctions should not be overused and the law should develop in a dialogue with community perceptions of right and wrong; (c)the consistency principle, which mandates that punishment-justifying considerations be applied systematically; (d)the analysis of mitigating factors recognized at the penalty stage of a criminal trial; and (e)considerations of fairness underlying the comparative liability reform in torts. Part III proposes a basis for a theory of comparative liability in criminal law and suggests a method that makes it possible to distinguish between cases, in which the victim’s conduct should provide the perpetrator with a complete or partial defense, and cases, in which the victim’s conduct should be legally irrelevant. The author offers a unitary explanation to the defenses of consent, self-defense and provocation. That explanation lies in the principle of conditionality of rights. Pursuant to this principle, the perpetrator’s liability should be reduced to the extent the victim, by his own acts, has changed the balance of rights between him and the perpetrator. The victim can do that either voluntarily, by waiving a right not to be harmed, or involuntarily, by forfeiting this right as a result of his unjustified attack on some legally recognized rights of the perpetrator. The article concludes with comparative analysis of factors that may affect the determination of the scope of the perpetrator’s liability. These factors include the magnitude of the affected rights of the perpetrator and the victim, the causative impact of their respective conduct, and their personal culpability
The Right to Be Hurt. Testing the Boundaries of Consent.
No full textPeople\u27s right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts--from sadomasochism and cannibalism to experimental medical treatment and mercy killing. Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been criticized for its arbitrary scope, outdated rationales, and potential for moralistic manipulation. Yet, despite those criticisms, no principled alternative has been worked out. This article is an attempt to develop a set of normative requirements for a new rule governing consensual bodily harm and a general defense of consent. The new rule would treat valid (voluntary and rational) consent of the victim as a defense of partial or complete justification. Partial justification is warranted by the mere fact that consensual harm does not involve at least one aspect of a paradigmatic offense, namely a rights violation. The victim was a co-author of his own injury and thus the perpetrator should not bear full responsibility for it. Complete justification, on the other hand, would require that, in addition to the victim’s consent, the perpetrator had a good reason for his harmful action: he intended to achieve a better balance of harms/evils and benefits and, in fact, managed to achieve it. This article rejects the absolute character of today’s law. Instead, it promotes a balancing test that takes into account the severity of harm to the victim\u27s interests and dignity as well as the importance of the reasons that caused the harmful act
Looting, Law, and Lawlessness
No full textAs 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 of society, encouraged to engage in lawlessness by powerful group dynamics and the apparent suspension of civil order. This article begins by examining the various meanings – both literal and metaphorical – of looting. It then considers the factors that make “bad looting” so bad, and “good looting” less so. With respect to the latter, it considers the possibility that: (1) the disruption in normal social order might leave defendants in a “state of nature,” outside the jurisdictional reach of the court; (2) the defendant’s criminal acts were “necessary” in order to avoid some greater harm from occurring; and (3) the otherwise law-abiding offender, suffering from a combination of fright, fatigue, hunger, exposure, and disorientation, should be at least partially excused on the grounds that his acts were “out of character.” The article concludes by considering some of the practical implications of the foregoing analysis, including the suggestion by various “conservative” commentators that the proper response to looters is to “shoot them on sight.” It argues that such a policy would be profoundly misguided, both because the criminal law should not tolerate the disproportionate use of deadly force in response to what is essentially a property crime, and because of the obvious difficulties of distinguishing between bad and good looting, particularly under the kinds of emergency conditions in which such acts are committed
Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment
No full textThe Framers could not have contemplated the interpretational problems that cloud the Fourth Amendment because police, in the modern sense, were unknown to the Framers. Also unknown to the Framers, of course, were wiretaps, drug interdiction searches, thermal imagining, helicopters, and blood tests. We can infer from the history surrounding the Fourth Amendment what the Framers hoped it would accomplish in their time. What if the Framers could have seen the future and known the kind of police techniques that are being used today? What kind of Fourth Amendment would they have written with that knowledge? This article seeks to answer this question
Contesting constitutional meaning: The political Constitution and the myth of judicial supremacy
No full textIn the last decade a lively debate about “extrajudicial” constitutional interpretation has broken out among constitutional scholars. And while this debate has insisted upon the centrality of nonjudicial constitutional interpretation, this scholarship remains rooted in “legal” views of the Constitution, which continue to give primacy of place to the Court. This dissertation seeks to go further by articulating a political view of the Constitution, which will allow us to resituate how we think of the Constitution and place questions of interpretation within this larger framework. This political view suggests that the constitution calls forth continual debate about constitutional meaning, that the “settlement” of constitutional issues is not an essential feature of our constitutional system and, thus, that constitutional politics with overlapping views, discontinuities, and essentially unsettled meaning are an inherent feature of our Constitution. Recovering the political Constitution is an essential step in rethinking what the Constitution is and, in doing so, overcoming the deeply ingrained myth of judicial supremacy
Discretion and Criminal Law: The Good, The Bad, and the Mundane
No full textMost academic papers condemn discretion in the enforcement and prosecution of crime. This essay argues that discretion should be understood to come in three varieties: good discretion, which is beneficial; bad discretion, which is typified by acts motivated by race, sex, or class considerations; and mundane discretion, which is value-neutral. The decision to pursue a drunken driver rather than a speeder, for example, is a good use of discretion while the decision to pursue one speeder rather than another based on race is bad discretion. Most motives that prompt acts of discretion, however, are value-neutral or what I call “mundane” in the essay. I defend the proposition that mundane acts of discretion should not be condemned because they are simply the residue of what it means to be human. Even the decision of a police officer not to arrest a speeder because the officer is too lazy or too near the end of her shift is, I argue, value neutral because it is not based on any characteristic of the suspect. Once we realize that most types of discretion are either good or mundane, it is easier to think about the problem of remedy for bad types of discretion. On that score, the essay is not optimistic that effective remedies can be designed to counter discretion based on race, sex, or class but some remedies are considered
It’s Personal But Is It Mine? Toward Property Rights in Personal Information.
No full text“It’s Personal But Is It Mine? Toward Property Rights in Personal Information” discusses the disturbing erosion of privacy suffered by the American society in recent years due to citizens’ loss of control over their personal information. This information, collected and traded by commercial enterprises, receives almost no protection under current law. I argue that, in order to protect privacy, individuals need to secure control over their information by becoming its legal owners. In this article, I confront two fundamental questions that have not been specifically addressed in the privacy literature before: why property is the most appropriate regime for regulating rights in personal information, and why individuals have a stronger moral claim to personal information than its collectors. Recognizing that individual rights may not be absolute, I further propose a way to balance them with rights of collectors and public at large, explore a range of legal and practical implications the new rules may create, and make suggestions regarding the enforcement of information privacy rights
It\u27s Personal but Is It Mine? Toward Property Rights in Personal Information
No full textIt\u27s Personal But Is It Mine? Toward Property Rights in Personal Information discusses the disturbing erosion of privacy suffered by the American society in recent years due to citizens\u27 loss of control over their personal information. This information, collected and traded by commercial enterprises, receives almost no protection under current law. I argue that, in order to protect privacy, individuals need to secure control over their information by becoming its legal owners. In this article, I confront two fundamental questions that have not been specifically addressed in the privacy literature before: why property is the most appropriate regime for regulating rights in personal information, and why individuals have a stronger moral claim to personal information than its collectors. Recognizing that individual rights may not be absolute, I further propose a way to balance them with rights of collectors and public at large, explore a range of legal and practical implications the new rules may create, and make suggestions regarding the enforcement of information privacy rights
Missing Miranda\u27s Story, A Review of Gary L. Stuart\u27s, Miranda: The Story of America\u27s Right to Remain Silent
No full textMiranda v. Arizona is the best known criminal procedure decision in the history of the Supreme Court. It has spawned dozens of books and hundreds of articles. The world does not need another Miranda book unless it has something new and interesting to tell readers. Unfortunately, to borrow an old cliche, the parts of Gary Stuart’s book that are new are, for the most part, not interesting and the parts that are interesting are, for the most part, not new. Stuart adds material to the Miranda storehouse about the involvement of local Arizona lawyers and judges in the original case, but he does not persuade that they played a critical part in shaping the future that became Miranda. He omits entirely Yale Kamisar, even though Kamisar\u27s 1965 article provided the conceptual basis for the Miranda approach to the interrogation problem. Beyond his odd choices about what to include and what to omit, Stuart tells a messy, sometimes erroneous, and pretty trite story about the importance of Miranda in the American scheme of justice. He is so absorbed in telling this story that he misses what is, in my judgment, the real story: Miranda has had precious little effect in the police interrogation room