6,503 research outputs found
Attempt by Omission
No full textIn addition to requiring subjective culpability, criminal offenses typically involve two objective features: action and harm. In the paradigmatic case, both features are present, but criminal law also allows for liability where either of them is absent. Rules governing omission liability enable punishment where the offender performs no act, while rules defining inchoate crimes (such as attempt) impose liability where the offender causes no harm. In different ways, these two sets of rules establish the minimum threshold of objective conduct-to use the classic term, the minimum actus reus-required for criminal liability.
The absolute floor for a criminal actus reus, then, would be defined by the intersection of these two sets of rules. The prospect of liability for inchoate omissions, involving no act and no harm, exists at the frontier of the state's authority to criminalize conduct and, whether allowed or rejected, effectively determines the outer boundaries of that authority. Accordingly, inchoate-omission liability raises fundamental issues about the nature and proper scope of criminal law.
This article considers those issues, asking whether criminal punishment for harmless inaction is legally possible, empirically observable, or normatively desirable and, perhaps surprisingly, answering all three of these questions in the affirmative. However unlikely or dubious the legal math may seem, it turns out that zero action plus zero harm can, does, and should sometimes add up to a crime.Please contact Charlotte Schneider ([email protected]) for any questions regarding this deposit
Defining Inchoate Crime: An Incomplete Attempt
No full textPlease direct any questions about this deposit to me, as the authorized depositor.Peer reviewed
Offense Grading and Multiple Liability: New Challenges for a Model Penal Code Second
No full textThis commentary raises two issues that, in the author's view, present some of the greatest challenges - as well as opportunities - for modern criminal theory and criminal-code reform. The first issue relates to the allocation of decision-making authority regarding an offender's ultimate punishment. Specifically, while Apprendi, its progeny, and most of the scholarship in this area have discussed the appropriate constitutional rules to govern element-versus-sentencing-factor determinations, more attention must be paid to developing and justifying a normative basis for making such determinations. The second issue relates to when, and how, criminal law imposes liability for more than one offense at a time. Here again, though the law of double jeopardy may provide a constitutional resolution of the issues, exploration of the underlying normative considerations remains surprisingly, and seriously, inadequate.Please address any questions about this deposit to me, as the authorized depositor.Peer reviewed
Retributive Justice in the Real World
No full textThere are two commonly recognized "theories" of criminal law: utilitarianism, which sees criminal law's purpose as preventing future harms; and retributivism, which sees criminal law's purpose as punishing past wrongs. One significant but little-discussed difference between the two theories relates to their relative scope: in a meaningful way, utilitarianism presents itself as a complete theory of criminal law, while retributivism does not.
Utilitarianism provides a comprehensive vision of criminal justice that can offer guidance, or at least a clear agenda, regarding both the content of criminal law and the best means for enforcing it. Retributivism, on the other hand, apparently speaks only to the criminal law's design, and not to its implementation. Retributive theory seems to say nothing about how to make the tradeoffs and compromises necessary to "do" criminal justice in the real world, whose inevitable resource constraints and other limitations prevent the system from imposing the full deserved punishment on every offender.
This article explores and evaluates the range of options for developing a real-world legal theory, as opposed to an idealized moral theory, of retributive punishment. It concludes that perhaps the only effective, or even plausible, option for doing so would be to adopt the approach of "consequentialist retributivism," which sees desert-based punishment as a goal to maximize rather than (as other approaches would demand) a categorical ex ante commitment. Interestingly, though this seems like the most intuitively sensible way to implement retributive justice, it is the approach with the least support in the theoretical literature. Thus, this article further seeks to advance the debate by suggesting the appeal (and perhaps the necessity) of employing the hitherto neglected perspective of consequentialist retributivism.Please contact Charlotte Schneider ([email protected]) for any questions regarding this deposit
Attempt, Reckless Homicide, and the Design of Criminal Law
No full textMost American criminal codes create an offense for recklessly killing another person, and nearly all contain a general provision covering any attempt to commit an offense. This article explores the relation between reckless homicide and attempt, which proves more complex than it appears and also turns out to provide a useful starting point for examination of several broader issues in attempt law and criminal law generally.
The idea of attempted reckless homicide (ARH) is largely disfavored by legal scholars and almost, but not quite, universally rejected in American law. Part I of the article questions that hostility. The theoretical arguments against ARH prove unpersuasive, or else too persuasive, in that taking them seriously would call into doubt not only ARH but also the general notion of having attempt liability at all. Moreover, the legal case against ARH under existing criminal statutes is by no means airtight. Indeed, the widely followed Model Penal Code formulation of attempt, read according to its own commentary's interpretive guidance, actually allows ARH in a limited set of situations, though the Code elsewhere tries to deny the possibility of ARH.
Although the law has not embraced ARH per se, it does penalize the same (or very nearly the same) conduct ARH would address, by creating a distinct offense of reckless endangerment, or a variety of more particular offenses covering specific forms of dangerous conduct, or both. Yet as Part II of the article discusses, the endangerment-offense solution to the ARH puzzle creates its own practical problems and raises a distinct set of questions about how to formulate criminal-law rules. The idea of writing a single attempt provision expansively covering any conduct that risks, but does not create, a criminal harm seems rooted in a sense that criminal law works best by establishing relatively few general rules of broad application. By contrast, the idea of identifying particular types of risky conduct and criminalizing each with a specific offense, such as reckless endangerment, indicates a sense that criminal rules should be narrow and precise rather than broad and flexible.
The article explores these two visions of how to write criminal law - which I call the thin-code and thick-code models, respectively - and describes how the choice between thick and thin is not merely formal, but may have significant practical consequences. Though each model has its independent merits, indiscriminately mixing the two is likely to make for a poor and problematic criminal code. Sadly, though, such thoughtless blends of thin and thick are all too common in our criminal law; if anything, they seem to be increasing.Please contact Charlotte Schneider ([email protected]) for any questions regarding this deposit
E-book : Industrial Transformation In The Developing World (author: Michael T. Rock & David P. Angel)
No full textArsip Kuliah Online 2010: E-book : Industrial Transformation In The Developing World (author: Michael T. Rock & David P. Angel
E-book : "industrial Transformations In The Developing World (author: Michael T. Rock & David. P Angel)
No full textArsip Kuliah Online 2010: E-book : "industrial Transformations In The Developing World (author: Michael T. Rock & David. P Angel
Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory
No full textBlackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions.
This Article summarizes the results of an empirical study designed to test the competing theories of blackmail to see which best accords with prevailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment.
Blackmail is not only a common subject of scholarly theorizing, but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. The Article reviews the American statutes and describes the three general approaches these provisions reflect. The empirical study of lay intuitions also allows an assessment of which of these statutory approaches (if any) captures the community’s views, thereby illuminating the extent to which existing law generates results that resonate with, or deviate from, popular moral sentiment.
The analyses provide an opportunity to critique the existing theories of blackmail and to suggest a refined theory that best expresses lay intuitions. The present project also reveals the substantial conflict between community views and much existing legislation, indicating recommendations for legislative reform. Finally, the Article suggests lessons that such studies and their analyses offer for criminal law and theory.Please contact Charlotte Schneider ([email protected]) for any questions regarding this deposit
Conflicting framings in global conservation governance: consequences for African megafauna
No full textWithin the domain of biodiversity conservation, attrition of Africa’s free-ranging populations of indigenous megafauna is a major concern for both governments and civil society. However, within the current global governance framework, there are conflicting approaches toward conserving African megafauna, aligned with broader discourses in environmental philosophy. For example, the governments of some African range states view these animals as harvestable natural resources and support utilization practices such as commercial hunting and the sale of live animals and body parts, whereas those practices are strongly opposed by influential international NGOs and, by association, governments of other countries. This results in contested global wildlife trade policies.
Pursuing a three-paper route, my DPhil thesis examines the nature, causes, and consequences of these conflicting approaches toward conserving African elephants, rhinos, and lions, by drawing on case study material obtained through practical engagements with wildlife trade policy processes. Grounded in a pragmatist approach, my research draws from a broad range of disciplines, strongly informed by institutional analyses and evaluations of the use of evidence. Linking a synthesis of existing institutional theories with a participatory research approach, it employs mixed methods and a multi-stage evaluation design, aimed at providing novel insights into the linkages between social constructs, formal institutions, wildlife trade policy, actor behaviour, and conservation outcomes.
I find that conflicting trade policies are partly determined by contrasting underlying ideological framings of the nature of the problem to be solved, including three somewhat incompatible overarching policy narratives, which I term Global Control, Decentralized Conservation, and Animal Protection. I further find that the international wildlife trade regime established by the CITES treaty shapes actor behaviour in a way that reinforces dominance of the Animal Protection paradigm over that of Decentralized Conservation. Finally, by analysing a long-term data set relating to rhino conservation outcomes I find that decentralization policies appear to outperform centralized policies such as trade restrictions. I conclude with a synthesis of the findings, discuss the implications thereof, and provide some suggestions for governance reform and further research
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