Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.65
M. Moore
{"title":"Victims and Retribution: A Reply to Professor Fletcher","authors":"M. Moore","doi":"10.1525/NCLR.1999.3.1.65","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.65","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133614955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1998-10-27DOI: 10.1525/NCLR.1998.2.1.191
Cynthia K. Y. Lee
This article critiques traditional formulations of the defense of self-defense which focus upon the reasonableness of the defendant's beliefs, without requiring a separate inquiry into the reasonableness of the defendant's conduct. The article also critiques formulations of the defense which require the defendant to be correct about the existence of justifying circumstances. Rather than focus exclusively upon the defendant's beliefs or exclusively upon the defendant's conduct, this article proposes a dual requirement for perfect self-defense. Not only must the defendant's beliefs be reasonable, but the defendant's conduct must also be reasonable. The article also proposes a new form of imperfect self-defense. If the defendant's beliefs are reasonable but his conduct unreasonable, then the defendant may be acquitted of the charged offense and liable for a lesser offense. The article also explores the meaning of reasonableness in self-defense doctrine, and suggests that the current bi-polar (objective-subjective) conception of reasonableness be replaced with a conception of reasonableness that recognizes different gradations of objectivity.
{"title":"The Act-Belief Distinction in Self-Defence Doctrine: A New Dual Requirement Theory of Justification","authors":"Cynthia K. Y. Lee","doi":"10.1525/NCLR.1998.2.1.191","DOIUrl":"https://doi.org/10.1525/NCLR.1998.2.1.191","url":null,"abstract":"This article critiques traditional formulations of the defense of self-defense which focus upon the reasonableness of the defendant's beliefs, without requiring a separate inquiry into the reasonableness of the defendant's conduct. The article also critiques formulations of the defense which require the defendant to be correct about the existence of justifying circumstances. Rather than focus exclusively upon the defendant's beliefs or exclusively upon the defendant's conduct, this article proposes a dual requirement for perfect self-defense. Not only must the defendant's beliefs be reasonable, but the defendant's conduct must also be reasonable. The article also proposes a new form of imperfect self-defense. If the defendant's beliefs are reasonable but his conduct unreasonable, then the defendant may be acquitted of the charged offense and liable for a lesser offense. The article also explores the meaning of reasonableness in self-defense doctrine, and suggests that the current bi-polar (objective-subjective) conception of reasonableness be replaced with a conception of reasonableness that recognizes different gradations of objectivity.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1998-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127774173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1998-04-01DOI: 10.1525/NCLR.1998.2.1.45
Ronald L. Gainer
Whatever view one holds about the penal law, no one will question its importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy.
{"title":"Federal Criminal Code Reform: Past and Future","authors":"Ronald L. Gainer","doi":"10.1525/NCLR.1998.2.1.45","DOIUrl":"https://doi.org/10.1525/NCLR.1998.2.1.45","url":null,"abstract":"Whatever view one holds about the penal law, no one will question its importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1998-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126749644","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1998-04-01DOI: 10.1525/NCLR.1998.2.1.297
G. Lynch
{"title":"Towards A Model Panel Code, Second (Federal?): The Challenge of the Special Part","authors":"G. Lynch","doi":"10.1525/NCLR.1998.2.1.297","DOIUrl":"https://doi.org/10.1525/NCLR.1998.2.1.297","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1998-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116744699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Robinson responds to George Fletcher's attacks on the Model Penal Code, specifically Fletcher's often biting claims that the drafters adopted these dogmas: (1) Define as many concepts as you can -- whether you are competent to do so or not. (2) Write provisions that seem precise but that judges could never understand. (3) Assume that you and your drafting committee are the only smart lawyers who have ever lived. (4) Pretend to subscribe to the rule of law. (5) Wreak theoretical changes, inadvertently if possible. (6) Pretend the problem of mistake does not exist. (7) Recognize but do not recognize mistake of law as an excuse.
{"title":"In Defense of the Model Penal Code: A Reply to Professor Fletcher","authors":"P. Robinson","doi":"10.2139/SSRN.137130","DOIUrl":"https://doi.org/10.2139/SSRN.137130","url":null,"abstract":"Robinson responds to George Fletcher's attacks on the Model Penal Code, specifically Fletcher's often biting claims that the drafters adopted these dogmas: (1) Define as many concepts as you can -- whether you are competent to do so or not. (2) Write provisions that seem precise but that judges could never understand. (3) Assume that you and your drafting committee are the only smart lawyers who have ever lived. (4) Pretend to subscribe to the rule of law. (5) Wreak theoretical changes, inadvertently if possible. (6) Pretend the problem of mistake does not exist. (7) Recognize but do not recognize mistake of law as an excuse.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1998-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128945691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1998-04-01DOI: 10.1525/NCLR.1998.2.1.249
J. Standen
{"title":"An Economic Prespective On Federal Criminal Law Reform","authors":"J. Standen","doi":"10.1525/NCLR.1998.2.1.249","DOIUrl":"https://doi.org/10.1525/NCLR.1998.2.1.249","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1998-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116208707","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1998-04-01DOI: 10.1525/NCLR.1998.2.1.161
K. F. Brickey
Anyone who has ventured into federal criminal law knows it is impossible to consult the federal criminal “code”—and I use the term advisedly— without becoming aware of peculiarities in its structure and content. Its well-documented shortcomings make proposals for federal criminal code reform sound like sweet reason, especially when the proponents speak with the authority that comes from years of working with and for the code reform effort. While it is hard to quarrel with their cogent calls for order and rationality in the federal law of crimes, the code reform debate often overlooks important realities of federal criminal law and criminal lawmaking that call into question whether code reform is practicable—or even advisable—at this time. The reforms recommended by the Brown Com-
{"title":"Federal Criminal Code Reform: Hidden Costs, Illusory Benefits","authors":"K. F. Brickey","doi":"10.1525/NCLR.1998.2.1.161","DOIUrl":"https://doi.org/10.1525/NCLR.1998.2.1.161","url":null,"abstract":"Anyone who has ventured into federal criminal law knows it is impossible to consult the federal criminal “code”—and I use the term advisedly— without becoming aware of peculiarities in its structure and content. Its well-documented shortcomings make proposals for federal criminal code reform sound like sweet reason, especially when the proponents speak with the authority that comes from years of working with and for the code reform effort. While it is hard to quarrel with their cogent calls for order and rationality in the federal law of crimes, the code reform debate often overlooks important realities of federal criminal law and criminal lawmaking that call into question whether code reform is practicable—or even advisable—at this time. The reforms recommended by the Brown Com-","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1998-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122558920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is an impressive achievement. The Model Penal Code’s popularity is due probably to the lack of competition. Among the materials conventionally regarded as authoritative in common law jurisdictions, there is not much of a choice. Most teachers have contempt for the cases that appear in the case books. When I ask law professors to name a case that expounds the law in a way that they admire, they throw up their hands. In most other fields—torts, contracts, constitutional law, even civil procedure— there are many judicial opinions that command respect. Not so in the criminal law. Nor do the existing codes provide much solace. The adaptations of the Model Penal Code in states like New York and Illinois lack the conceptual integrity of the model statute. And surely, no one would take a 19th century state code, such as the California Criminal Code, as the model for proper analysis.
{"title":"Dogmas of the Model Penal Code","authors":"G. Fletcher","doi":"10.1525/NCLR.1998.2.1.3","DOIUrl":"https://doi.org/10.1525/NCLR.1998.2.1.3","url":null,"abstract":"The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is an impressive achievement. The Model Penal Code’s popularity is due probably to the lack of competition. Among the materials conventionally regarded as authoritative in common law jurisdictions, there is not much of a choice. Most teachers have contempt for the cases that appear in the case books. When I ask law professors to name a case that expounds the law in a way that they admire, they throw up their hands. In most other fields—torts, contracts, constitutional law, even civil procedure— there are many judicial opinions that command respect. Not so in the criminal law. Nor do the existing codes provide much solace. The adaptations of the Model Penal Code in states like New York and Illinois lack the conceptual integrity of the model statute. And surely, no one would take a 19th century state code, such as the California Criminal Code, as the model for proper analysis.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"116 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1998-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114235381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1997-04-01DOI: 10.1525/NCLR.1997.1.1.109
A. Coughlin
{"title":"Of White Slaves and Domestic Hostages","authors":"A. Coughlin","doi":"10.1525/NCLR.1997.1.1.109","DOIUrl":"https://doi.org/10.1525/NCLR.1997.1.1.109","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131411810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1997-04-01DOI: 10.1525/NCLR.1997.1.1.175
B. Schünemann
Comparing the US and Germany with respect to the basic principles behind legislative measures in the field of criminal law reveals a considerable similarity. While in the US causation of social harm or danger of social harm are necessary requirements for punishing conduct, in Germany it is the violation of a legal interest ("Rechtsgut"). As a consequence, the legitimacy of an environmental law is questionable within postmodern fun and consumer society. Because the consumption of natural resources under the economic conditions of unleashed global capitalism in its huge dimensions is mostly legal, it is not feasible to see the environment as the genuine legal interest the criminal law has to protect. In view of contemporary reality which will inevitably result in an ecological Holocaust this paper argues for a distribution of goods based on principles of natural law: each generation has to pass on the natural resources to the next generation in a condition which has not been deteriorated compared to the condition it was obtained from a prior generation. Therefore, disproportionate consumption of non-renewable resources or wasting renewable resources are offenses by natural law which are of much more significance than the property order of produced goods and the corresponding offense of theft.
{"title":"Principles of Criminal Legislation in Postmodern Society: The Case of Environmental Law","authors":"B. Schünemann","doi":"10.1525/NCLR.1997.1.1.175","DOIUrl":"https://doi.org/10.1525/NCLR.1997.1.1.175","url":null,"abstract":"Comparing the US and Germany with respect to the basic principles behind legislative measures in the field of criminal law reveals a considerable similarity. While in the US causation of social harm or danger of social harm are necessary requirements for punishing conduct, in Germany it is the violation of a legal interest (\"Rechtsgut\"). As a consequence, the legitimacy of an environmental law is questionable within postmodern fun and consumer society. Because the consumption of natural resources under the economic conditions of unleashed global capitalism in its huge dimensions is mostly legal, it is not feasible to see the environment as the genuine legal interest the criminal law has to protect. In view of contemporary reality which will inevitably result in an ecological Holocaust this paper argues for a distribution of goods based on principles of natural law: each generation has to pass on the natural resources to the next generation in a condition which has not been deteriorated compared to the condition it was obtained from a prior generation. Therefore, disproportionate consumption of non-renewable resources or wasting renewable resources are offenses by natural law which are of much more significance than the property order of produced goods and the corresponding offense of theft.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"438 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131672000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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