On July 8, 2001 in Lake Park, Florida, Anthony Frierson was sitting in his .1981 Plymouth sedan on Old Dixie Highway waiting for the light to turn green. Once the green turn arrow appeared, he turned left without using his signal. Although turning without a signal does not violate Florida traffic laws,' Officer Steven Miller observed Frierson making the turn and pulled him over illegally.2 When asked, Frierson provided the officer with his license, which Miller used to run a warrants check. The check revealed an outstanding warrant for Frierson's arrest for failure to appear in traffic court. On the basis of that warrant, Officer Miller arrested Frierson and conducted a search incident to arrest. That search revealed an illegal firearm, for which Frierson was charged and later convicted. 3 In State v. Frierson, the Florida Supreme Court upheld the conviction, permitting entry of the firearm into evidence. The court reasoned that "the outstanding arrest warrant was a judicial order directing the arrest of respondent whenever the respondent was located," and thus "the search was incident to the outstanding warrant and not incident to the illegal stop."4 Although the suspicionless traffic stop violated the Federal Constitution, the
{"title":"Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability","authors":"Michael B Kimberly","doi":"10.2307/20454706","DOIUrl":"https://doi.org/10.2307/20454706","url":null,"abstract":"On July 8, 2001 in Lake Park, Florida, Anthony Frierson was sitting in his .1981 Plymouth sedan on Old Dixie Highway waiting for the light to turn green. Once the green turn arrow appeared, he turned left without using his signal. Although turning without a signal does not violate Florida traffic laws,' Officer Steven Miller observed Frierson making the turn and pulled him over illegally.2 When asked, Frierson provided the officer with his license, which Miller used to run a warrants check. The check revealed an outstanding warrant for Frierson's arrest for failure to appear in traffic court. On the basis of that warrant, Officer Miller arrested Frierson and conducted a search incident to arrest. That search revealed an illegal firearm, for which Frierson was charged and later convicted. 3 In State v. Frierson, the Florida Supreme Court upheld the conviction, permitting entry of the firearm into evidence. The court reasoned that \"the outstanding arrest warrant was a judicial order directing the arrest of respondent whenever the respondent was located,\" and thus \"the search was incident to the outstanding warrant and not incident to the illegal stop.\"4 Although the suspicionless traffic stop violated the Federal Constitution, the","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/20454706","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72514988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the United States, corporations—as entities—can be criminally tried and convicted for crimes committed by individual directors, managers, and even low-level employees. From a comparative perspective, such corporate liability marks the United States as relatively unique. Few other Western countries impose entity liability, and those that do impose such liability comparatively infrequently and under the threat of far less serious punishment. The question of why the United States—and the United States virtually alone—imposes corporate criminal liability has been the subject of limited scholarly attention. This Note seeks to fill that void through the prism of comparative law. Using Germany—a country that imposes no corporate criminal liability—as a foil, this Note argues that the American doctrine can best be explained not through criminal theory but rather through criminal procedure. American criminal procedure imposes unique difficulties on American investigators and prosecutors seeking to root out individual white-collar criminals. But it also imparts powers to those prosecutors that are unknown to their German counterparts. Among them is the power to threaten criminal indictment, one that allows prosecutors to force American corporations to cooperate, to waive the attorney-client privilege, and to cut ties to individual employees under investigation, thereby facilitating the prosecution of those individual defendants. Using differences in criminal procedure rather than criminal theory to explain the uniquely American doctrine, this Note concludes by suggesting how the criminal procedure approach can best be used to understand— and potentially to reform—an American system that critics increasingly decry as broken. author. Yale Law School, J.D. 2008; Yale College, B.A. 2003. The author wishes to thank Professor James Whitman for inspiring this project and providing extensive feedback on prior drafts; Professors Kate Stith and Steven Duke for their invaluable guidance on this and other projects; and Greg Diskant, Paul Hughes, Richard Re, and Nicolas Thompson for their very helpful comments on the topic and prior drafts. DISKANT OP 10/14/2008 11:37:14 AM comparative corporate criminal liability
在美国，公司——作为实体——可以因个别董事、经理、甚至低级雇员所犯的罪行而受到刑事审判和定罪。从比较的角度来看，这种公司责任标志着美国相对独特。很少有其他西方国家规定实体责任，而那些规定实体责任的国家相对较少，受到的惩罚也要轻得多。为什么美国——实际上只有美国——强制企业承担刑事责任的问题一直是学术界关注的有限主题。本说明试图通过比较法的棱镜来填补这一空白。本文以德国——一个没有公司刑事责任的国家——作为陪衬，认为美国的原则最好不是通过刑事理论来解释，而是通过刑事程序来解释。美国的刑事诉讼程序给美国的调查人员和检察官在寻找单个白领罪犯时带来了独特的困难。但它也赋予了这些检察官不为德国同行所知的权力。其中包括威胁刑事起诉的权力，检察官可以强迫美国公司合作，放弃律师-当事人特权，切断与被调查的个别雇员的联系，从而促进对个别被告的起诉。本文利用刑事诉讼程序的差异而不是刑事理论来解释独特的美国原则，最后提出如何最好地利用刑事诉讼程序方法来理解——并有可能改革——越来越多的批评者谴责美国制度已经崩溃。作者。耶鲁大学法学院2008年法学博士;耶鲁大学，学士，2003年。作者希望感谢James Whitman教授对这个项目的启发，并对之前的草稿提供了广泛的反馈;Kate Stith和Steven Duke教授对这个项目和其他项目的宝贵指导;以及Greg Diskant, Paul Hughes, Richard Re和Nicolas Thompson对主题和先前草稿的非常有帮助的评论。比较企业刑事责任
{"title":"Comparative Corporate Criminal Liability: Exploring the Uniquely American Doctrine Through Comparative Criminal Procedure","authors":"Edward B. Diskant","doi":"10.2307/20454705","DOIUrl":"https://doi.org/10.2307/20454705","url":null,"abstract":"In the United States, corporations—as entities—can be criminally tried and convicted for crimes committed by individual directors, managers, and even low-level employees. From a comparative perspective, such corporate liability marks the United States as relatively unique. Few other Western countries impose entity liability, and those that do impose such liability comparatively infrequently and under the threat of far less serious punishment. The question of why the United States—and the United States virtually alone—imposes corporate criminal liability has been the subject of limited scholarly attention. This Note seeks to fill that void through the prism of comparative law. Using Germany—a country that imposes no corporate criminal liability—as a foil, this Note argues that the American doctrine can best be explained not through criminal theory but rather through criminal procedure. American criminal procedure imposes unique difficulties on American investigators and prosecutors seeking to root out individual white-collar criminals. But it also imparts powers to those prosecutors that are unknown to their German counterparts. Among them is the power to threaten criminal indictment, one that allows prosecutors to force American corporations to cooperate, to waive the attorney-client privilege, and to cut ties to individual employees under investigation, thereby facilitating the prosecution of those individual defendants. Using differences in criminal procedure rather than criminal theory to explain the uniquely American doctrine, this Note concludes by suggesting how the criminal procedure approach can best be used to understand— and potentially to reform—an American system that critics increasingly decry as broken. author. Yale Law School, J.D. 2008; Yale College, B.A. 2003. The author wishes to thank Professor James Whitman for inspiring this project and providing extensive feedback on prior drafts; Professors Kate Stith and Steven Duke for their invaluable guidance on this and other projects; and Greg Diskant, Paul Hughes, Richard Re, and Nicolas Thompson for their very helpful comments on the topic and prior drafts. DISKANT OP 10/14/2008 11:37:14 AM comparative corporate criminal liability","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79738068","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court's recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe - exploring strategic considerations that lead advocates to favor incremental restrictions over bans, and to supplement fetal-protective justifications with woman-protective justifications for regulating abortion. The essay argues that a multi-faceted commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity is a value that bridges communities divided in the abortion debate, as well as diverse bodies of constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion, while Casey invokes dignity as a reason for protecting women's abortion decisions from government regulation. This dignity-based analysis of Casey/Carhart offers principles for determining the constitutionality of woman-protective abortion restrictions. that are grounded in a large body of substantive due process and equal protection case law. Protecting women can violate women's dignity if protection is based on stereotypical assumptions about women's capacities and women's roles, as many of the new woman-protective abortion restrictions are. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. The new woman-protective abortion restrictions do not provide women in need what they need: they do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting on alternative - and constitutional - modes of protecting women who are making decisions about motherhood.
{"title":"Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart","authors":"Reva B. Siegel","doi":"10.2307/20454694","DOIUrl":"https://doi.org/10.2307/20454694","url":null,"abstract":"This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court's recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe - exploring strategic considerations that lead advocates to favor incremental restrictions over bans, and to supplement fetal-protective justifications with woman-protective justifications for regulating abortion. The essay argues that a multi-faceted commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity is a value that bridges communities divided in the abortion debate, as well as diverse bodies of constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion, while Casey invokes dignity as a reason for protecting women's abortion decisions from government regulation. This dignity-based analysis of Casey/Carhart offers principles for determining the constitutionality of woman-protective abortion restrictions. that are grounded in a large body of substantive due process and equal protection case law. Protecting women can violate women's dignity if protection is based on stereotypical assumptions about women's capacities and women's roles, as many of the new woman-protective abortion restrictions are. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. The new woman-protective abortion restrictions do not provide women in need what they need: they do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting on alternative - and constitutional - modes of protecting women who are making decisions about motherhood.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84815409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Elements of the Law of Contracts","authors":"E. Harriman","doi":"10.2307/1321507","DOIUrl":"https://doi.org/10.2307/1321507","url":null,"abstract":"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78765846","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Philip Morris v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of this landmark decision. It argues that, although the Court's procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages - questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution's criminal procedural safeguards? The Article argues that punitive damages are properly conceived of a form of punishment for private wrongs: judicially sanctioned private revenge. As such, the Article explains, it makes both theoretical and doctrinal sense to impose them without affording the defendant criminal procedural protections, which are necessitated only for the punishment of public wrongs on behalf of society. When, however, courts employ punitive damages as a form of punishment for public wrongs, they become a substitute for the criminal law and thus make an intolerable end run around the Bill of Rights. For that reason, Williams was ultimately correct that punitive damages must be limited to punishment for the harm done to the individual plaintiff, not the harm done to the general public. The Article concludes by considering the future of punitive damages in light of the Williams decision. It concludes that, contrary to the emerging conventional wisdom, Williams does not stand in the way of the imposition of substantial extra-compensatory damages of the type favored by law and economics scholars as a means of forcing the defendant to internalize the costs of its behavior in order to achieve optimal deterrence. It is the fact that punitive damages punish, and that they do so in order to vindicate the interests of the state, that precludes their use to address third-party harms. Once the element of punishment is eliminated from the remedy, the constitutional infirmity at issue in Williams is ameliorated.
{"title":"Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages","authors":"Thomas B. Colby","doi":"10.2307/20454718","DOIUrl":"https://doi.org/10.2307/20454718","url":null,"abstract":"In Philip Morris v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of this landmark decision. It argues that, although the Court's procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages - questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution's criminal procedural safeguards? The Article argues that punitive damages are properly conceived of a form of punishment for private wrongs: judicially sanctioned private revenge. As such, the Article explains, it makes both theoretical and doctrinal sense to impose them without affording the defendant criminal procedural protections, which are necessitated only for the punishment of public wrongs on behalf of society. When, however, courts employ punitive damages as a form of punishment for public wrongs, they become a substitute for the criminal law and thus make an intolerable end run around the Bill of Rights. For that reason, Williams was ultimately correct that punitive damages must be limited to punishment for the harm done to the individual plaintiff, not the harm done to the general public. The Article concludes by considering the future of punitive damages in light of the Williams decision. It concludes that, contrary to the emerging conventional wisdom, Williams does not stand in the way of the imposition of substantial extra-compensatory damages of the type favored by law and economics scholars as a means of forcing the defendant to internalize the costs of its behavior in order to achieve optimal deterrence. It is the fact that punitive damages punish, and that they do so in order to vindicate the interests of the state, that precludes their use to address third-party harms. Once the element of punishment is eliminated from the remedy, the constitutional infirmity at issue in Williams is ameliorated.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77461724","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the early 1960s, Brian Landsberg and his colleagues at the Department of Justice challenged the discriminatory practices of Alabama's local voting officials, who manipulated registration requirements to prevent blacks from joining the voting rolls. In Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act, Landsberg gives these lawyers their historical due. He demonstrates how the cases they brought helped shape the landmark Voting Rights Act of 1965. Though Landsberg's account ends with the dawn of the VRA, the importance of the DOJ litigators' work ultimately transcended is impact on the original statute. The history Landsberg tells underscores that when remedies migrate from litigation to legislation, they establish a framework that subsequent reformers can use to address new challenges. This Essay demonstrates this dynamic. It highlights how the DOJ lawyers provoked a paradigm shift that ultimately supported the extension of the VRA to language minorities, giving rise to the bilingual ballot. Though much separates 1960s Alabama from 1970s Texas, the time and place that produced the VRA's extensions, the two historical moments are connected by principles of great significance to contemporary conceptions of democracy. This same comparison, however, also demonstrates that remedies targeted at the problems of one group may not translate well to the context of another group. In addition to providing an opportunity for reflection on the far-reaching consequences of the DOJ litigation, then, Landsberg's work reminds us of the need to look beyond existing frameworks when addressing contemporary challenges to equality in the political process.
{"title":"From Litigation, Legislation: A Review of Brian Landsberg's Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act","authors":"Cristina M. Rodríguez","doi":"10.2307/20454676","DOIUrl":"https://doi.org/10.2307/20454676","url":null,"abstract":"In the early 1960s, Brian Landsberg and his colleagues at the Department of Justice challenged the discriminatory practices of Alabama's local voting officials, who manipulated registration requirements to prevent blacks from joining the voting rolls. In Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act, Landsberg gives these lawyers their historical due. He demonstrates how the cases they brought helped shape the landmark Voting Rights Act of 1965. Though Landsberg's account ends with the dawn of the VRA, the importance of the DOJ litigators' work ultimately transcended is impact on the original statute. The history Landsberg tells underscores that when remedies migrate from litigation to legislation, they establish a framework that subsequent reformers can use to address new challenges. This Essay demonstrates this dynamic. It highlights how the DOJ lawyers provoked a paradigm shift that ultimately supported the extension of the VRA to language minorities, giving rise to the bilingual ballot. Though much separates 1960s Alabama from 1970s Texas, the time and place that produced the VRA's extensions, the two historical moments are connected by principles of great significance to contemporary conceptions of democracy. This same comparison, however, also demonstrates that remedies targeted at the problems of one group may not translate well to the context of another group. In addition to providing an opportunity for reflection on the far-reaching consequences of the DOJ litigation, then, Landsberg's work reminds us of the need to look beyond existing frameworks when addressing contemporary challenges to equality in the political process.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79662223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A U T H O R. Yale Law School, J.D. expected 2008; Yale University, B.A. 2005. The author is indebted to Professor Peter H. Schuck for his ldndness, support, and brutal honesty. She wishes to thank everyone at the Rudd Center for their guidance on this project; Professors Richard Brooks, Christine Jolls, Theodore Ruger, and Stephen D. Sugarman for their helpful comments; and Sarah L. Bishop for her artful editing.
A U T H O R.耶鲁大学法学院，J.D.，预计2008;耶鲁大学，文学士2005。作者感谢彼得·h·舒克教授的坦率、支持和残酷的诚实。她要感谢拉德中心的每一个人对这个项目的指导;Richard Brooks, Christine Jolls, Theodore Ruger和Stephen D. Sugarman教授的有益评论;以及莎拉·l·毕晓普(Sarah L. Bishop)的艺术编辑。
{"title":"Weight Discrimination: One Size Fits All Remedy?","authors":"Lucy Wang","doi":"10.2307/20454697","DOIUrl":"https://doi.org/10.2307/20454697","url":null,"abstract":"A U T H O R. Yale Law School, J.D. expected 2008; Yale University, B.A. 2005. The author is indebted to Professor Peter H. Schuck for his ldndness, support, and brutal honesty. She wishes to thank everyone at the Rudd Center for their guidance on this project; Professors Richard Brooks, Christine Jolls, Theodore Ruger, and Stephen D. Sugarman for their helpful comments; and Sarah L. Bishop for her artful editing.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73595831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A U T H O R. Yale Law School, J.D. expected 2009; A.B. Duke University, 2006. I am grateful to Anne Alstott for her guidance and inspiration throughout the development of this piece. Thanks also to Stephen Meyer for his insightful comments and unwavering encouragement, to my family and particularly my mother, Elizabeth Phillips, for constant support and ideas, and to Adam Banks for his exceptional editing.
A U T H O R.耶鲁大学法学院，法学博士，2009;杜克大学，2006。我很感谢Anne Alstott在这篇文章的整个发展过程中所给予的指导和启发。还要感谢斯蒂芬·迈耶的深刻评论和坚定的鼓励，感谢我的家人，尤其是我的母亲伊丽莎白·菲利普斯，一直以来的支持和想法，感谢亚当·班克斯出色的编辑工作。
{"title":"When Parents Aren't Enough: External Advocacy in Special Education","authors":"E. Phillips","doi":"10.2307/20454695","DOIUrl":"https://doi.org/10.2307/20454695","url":null,"abstract":"A U T H O R. Yale Law School, J.D. expected 2009; A.B. Duke University, 2006. I am grateful to Anne Alstott for her guidance and inspiration throughout the development of this piece. Thanks also to Stephen Meyer for his insightful comments and unwavering encouragement, to my family and particularly my mother, Elizabeth Phillips, for constant support and ideas, and to Adam Banks for his exceptional editing.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74108204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Justification defenses have been the subject of a protracted debate in criminal law theory for the past thirty years. Both sides in this debate have assumed that the question at issue is whether the actor's conduct is morally justified; they differ only in their views on this question. Whereas Paul Robinson has insisted that conduct is morally justified when it prevents greater harm than it causes, George Fletcher and John Gardner have insisted that the actor's reasons for action also play a crucial role. This article contends that both sides in the justifications debate have been asking the wrong question. An examination of actual justification defenses throughout the common law world makes clear that they are primarily concerned with the special permission conferred upon the actor by an authorized individual (e.g., a justice of the peace confers the authority to conduct a search on a police officer). In some cases, the authority deciding to permit the conduct is the very person who carries it out (as when a police officer decides that it is permissible to make a warrantless arrest or when a parent decides that it is permissible to use physical force against her child). Given the role that justifications clearly play in criminal law doctrine, it is appropriate to shift our attention from an evaluation of the conduct itself to a review of the authority's decision to permit it. A court's job, when evaluating justifications, is akin to the judicial review of an administrative decision. We should ask whether the decision was made reasonably and on the proper grounds, and not whether the outcome of their deliberation was correct, all things considered. Through this study of justification defenses, we begin to see that private authority in criminal law (such as parents over their children) and public authority (such as the decisions of a justice of the peace) share a common normative structure. This article concludes with a number of new questions of political legitimacy raised by this analysis.
{"title":"Justifications, Powers and Authority","authors":"M. Thorburn","doi":"10.2307/20454675","DOIUrl":"https://doi.org/10.2307/20454675","url":null,"abstract":"Justification defenses have been the subject of a protracted debate in criminal law theory for the past thirty years. Both sides in this debate have assumed that the question at issue is whether the actor's conduct is morally justified; they differ only in their views on this question. Whereas Paul Robinson has insisted that conduct is morally justified when it prevents greater harm than it causes, George Fletcher and John Gardner have insisted that the actor's reasons for action also play a crucial role. This article contends that both sides in the justifications debate have been asking the wrong question. An examination of actual justification defenses throughout the common law world makes clear that they are primarily concerned with the special permission conferred upon the actor by an authorized individual (e.g., a justice of the peace confers the authority to conduct a search on a police officer). In some cases, the authority deciding to permit the conduct is the very person who carries it out (as when a police officer decides that it is permissible to make a warrantless arrest or when a parent decides that it is permissible to use physical force against her child). Given the role that justifications clearly play in criminal law doctrine, it is appropriate to shift our attention from an evaluation of the conduct itself to a review of the authority's decision to permit it. A court's job, when evaluating justifications, is akin to the judicial review of an administrative decision. We should ask whether the decision was made reasonably and on the proper grounds, and not whether the outcome of their deliberation was correct, all things considered. Through this study of justification defenses, we begin to see that private authority in criminal law (such as parents over their children) and public authority (such as the decisions of a justice of the peace) share a common normative structure. This article concludes with a number of new questions of political legitimacy raised by this analysis.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89554224","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What distinguishes judicial liberals from judicial conservatives? The answer, argues Christopher Eisgruber in The Next Justice: Repairing the Supreme Court Appointments Process, is the same as what distinguishes liberals from conservatives generally: their "political and moral values."' According to Eisgruber, a self-described liberal,2 the line dividing liberals and conservatives is especially evident on the Supreme Court. Because the Court's docket ''consists almost exclusively of hard cases where the law's meaning is genuinely in doubt," applying the law "will require the justices to make politically controversial judgments" "in a significant number of instances. ' "When they make those judgments," writes Eisgruber, "they have no choice but to bring their values to bear on the issues in front of them."4 Eisgruber thus argues that Senators should thoroughly examine a Supreme Court nominee's ideological convictions before voting to confirm the next Justice.'
{"title":"The Supreme Court Appointments Process and the Real Divide Between Liberals and Conservatives","authors":"Frederick Liu","doi":"10.2307/20454698","DOIUrl":"https://doi.org/10.2307/20454698","url":null,"abstract":"What distinguishes judicial liberals from judicial conservatives? The answer, argues Christopher Eisgruber in The Next Justice: Repairing the Supreme Court Appointments Process, is the same as what distinguishes liberals from conservatives generally: their \"political and moral values.\"' According to Eisgruber, a self-described liberal,2 the line dividing liberals and conservatives is especially evident on the Supreme Court. Because the Court's docket ''consists almost exclusively of hard cases where the law's meaning is genuinely in doubt,\" applying the law \"will require the justices to make politically controversial judgments\" \"in a significant number of instances. ' \"When they make those judgments,\" writes Eisgruber, \"they have no choice but to bring their values to bear on the issues in front of them.\"4 Eisgruber thus argues that Senators should thoroughly examine a Supreme Court nominee's ideological convictions before voting to confirm the next Justice.'","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81662160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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