{"title":"Reply to 'How Foot Voting Enhances Political Freedom'","authors":"James Allan","doi":"10.2139/ssrn.3522859","DOIUrl":"https://doi.org/10.2139/ssrn.3522859","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"56 1","pages":"1121-1128"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43479020","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}
This Article examines the evolution of conceptions of “good” corporate governance that have successively revolutionized the corporate landscape. This Article shows that corporate decision making was influenced over the years by successive, rationalized ideals of good corporate governance. Changes in conceptions were precipitated by crises and environmental changes. They were reasoned, if often flawed, responses to complex macroeconomic forces, competitive conditions, regulations or the lack thereof, and other environmental factors. More importantly, they were reflections of the culture and thinking of the time, influenced by the views of successful business leaders, the business press, investors, and academics. This Article utilizes a broad definition of “conceptions of corporate governance.” It refers to managers’ perceptions of proper corporate purposes, strategies, and structures. It embraces managers’ perceptions of their environment and their ideals regarding such matters as their firm’s interactions with competitors, stakeholders, and the government. Thus, this approach broadens the use of the term “corporate governance,” based on agency theory, that arose during the 1980s focusing on the relationship between managers and shareholders. In earlier periods in U.S. business history, the central purpose of corporate governance was not to maximize stock prices, but to achieve growth, with survival and profit mainly as constraints. Managers adopted a variety of strategies that dominated the economic landscape, such as cartels, trusts, holding companies, vertical integration, and the unitary/functional, multidivisional, and conglomerate organizational forms. In the modern era managers have mainly adopted strategies to maximize shareholder value, including predominantly disaggregation and cost-cutting strategies. Like prior managerial strategies, they are not inevitable and have some negative consequences. These consequences include problematic managerial incentives, short-termism, the unsettling empowerment of short-term investors and financial firms, and adverse distributional consequences, discussed in this Article. As with prior eras, negative consequences are leading to changes. For instance, I see on the horizon the emergence of the sustainability conception of corporate governance. Rather than focusing solely on shareholders, managers with this emerging dominant conception would take a broader view of their role to consider as central to their business strategies the long-term societal value they create and the interests of all stakeholders. In Part II, I briefly examine the earlier conceptions of corporate governance to provide a background for understanding how corporate governance changes over time. Looking at changes in the past provides hope for change in the future. I then examine more recent finance conceptions of corporate governance in Part III — the portfolio and the shareholder value maximization conceptions. Additionally, in
{"title":"Is There Hope for Change? The Evolution of Conceptions of 'Good' Corporate Governance","authors":"Lynne L. Dallas","doi":"10.2139/SSRN.3026266","DOIUrl":"https://doi.org/10.2139/SSRN.3026266","url":null,"abstract":"This Article examines the evolution of conceptions of “good” corporate governance that have successively revolutionized the corporate landscape. This Article shows that corporate decision making was influenced over the years by successive, rationalized ideals of good corporate governance. Changes in conceptions were precipitated by crises and environmental changes. They were reasoned, if often flawed, responses to complex macroeconomic forces, competitive conditions, regulations or the lack thereof, and other environmental factors. More importantly, they were reflections of the culture and thinking of the time, influenced by the views of successful business leaders, the business press, investors, and academics. This Article utilizes a broad definition of “conceptions of corporate governance.” It refers to managers’ perceptions of proper corporate purposes, strategies, and structures. It embraces managers’ perceptions of their environment and their ideals regarding such matters as their firm’s interactions with competitors, stakeholders, and the government. Thus, this approach broadens the use of the term “corporate governance,” based on agency theory, that arose during the 1980s focusing on the relationship between managers and shareholders. In earlier periods in U.S. business history, the central purpose of corporate governance was not to maximize stock prices, but to achieve growth, with survival and profit mainly as constraints. Managers adopted a variety of strategies that dominated the economic landscape, such as cartels, trusts, holding companies, vertical integration, and the unitary/functional, multidivisional, and conglomerate organizational forms. In the modern era managers have mainly adopted strategies to maximize shareholder value, including predominantly disaggregation and cost-cutting strategies. Like prior managerial strategies, they are not inevitable and have some negative consequences. These consequences include problematic managerial incentives, short-termism, the unsettling empowerment of short-term investors and financial firms, and adverse distributional consequences, discussed in this Article. As with prior eras, negative consequences are leading to changes. For instance, I see on the horizon the emergence of the sustainability conception of corporate governance. Rather than focusing solely on shareholders, managers with this emerging dominant conception would take a broader view of their role to consider as central to their business strategies the long-term societal value they create and the interests of all stakeholders. In Part II, I briefly examine the earlier conceptions of corporate governance to provide a background for understanding how corporate governance changes over time. Looking at changes in the past provides hope for change in the future. I then examine more recent finance conceptions of corporate governance in Part III — the portfolio and the shareholder value maximization conceptions. Additionally, in ","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"54 1","pages":"491"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3026266","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68490069","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}
{"title":"Extending Miranda: Prohibition on Police Lies Regarding the Incriminating Evidence","authors":"Rinat Kitai-Sangero","doi":"10.2139/ssrn.3163590","DOIUrl":"https://doi.org/10.2139/ssrn.3163590","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"54 1","pages":"611"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68568044","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}
I defend the intuition that an innocent victim (IV) is permitted to use defensive force against a wrongful aggressor (WA) even when both parties know the harm inflicted is futile in that it will not prevent aggression in either the present or the future. To support this intuitive judgment, I maintain that the infliction of harm upon WA by IV produces an impersonal good --- a valuable objective that is not good for IV or indeed for anyone. I describe the advantages of employing impersonal goods to support the intuition that IV is permitted to harm WA even though the effort is futile.
{"title":"The Vindication of Good Over Evil: “Futile” Self-Defense","authors":"Douglas Husak","doi":"10.2139/SSRN.2871523","DOIUrl":"https://doi.org/10.2139/SSRN.2871523","url":null,"abstract":"I defend the intuition that an innocent victim (IV) is permitted to use defensive force against a wrongful aggressor (WA) even when both parties know the harm inflicted is futile in that it will not prevent aggression in either the present or the future. To support this intuitive judgment, I maintain that the infliction of harm upon WA by IV produces an impersonal good --- a valuable objective that is not good for IV or indeed for anyone. I describe the advantages of employing impersonal goods to support the intuition that IV is permitted to harm WA even though the effort is futile.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"55 1","pages":"291"},"PeriodicalIF":0.0,"publicationDate":"2016-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68406481","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}
In this article, I defend a system with a greater variation in the number of standards of proof than we currently have as both normatively and descriptively valuable. Standards of proof are a mechanism for allocating the risk of factual error between parties. For example, the heightened beyond a reasonable doubt standard in criminal cases reflects an aspiration for a legal system erring more in favor of mistaken acquittals than mistaken convictions. Surprisingly, we then assign the same standard to very different cases under the justification that we accept (or should accept) the same error-distribution for those cases. However ubiquitous, this justification is twice mistaken. First, it is normatively mistaken. There are important arguments in support of a system with varying standards of proof based on welfare, fairness, and distributional considerations. Second, this justification is also positively mistaken. Decades of behavioral psychology research on jury decision-making suggests that jurors do not make decisions based on the same error-distribution for all cases. I also reply to objections against my proposal, two of which stand out. According to some scholars, for my proposal to work we would need a lot of empirical information which is difficult to obtain. I argue that, while we wait for the data, we should understand standards as sub-optimal generalizations, with concrete results that might be hard to verify. Another important objection is that we already adjust the error-distribution with other legal mechanisms, such as by adding or removing causes of action. Even if that is true, I show how such strategy is inferior to my proposal. All these considerations push in the direction of a greater variation in the number of standards. Profound policy consequences follow. We become hard-pressed to reevaluate the socially optimal error-distributions on different types cases and what should be the corresponding standards of proof.
{"title":"The Case for Varying Standards of Proof","authors":"G. Ribeiro","doi":"10.2139/SSRN.2857039","DOIUrl":"https://doi.org/10.2139/SSRN.2857039","url":null,"abstract":"In this article, I defend a system with a greater variation in the number of standards of proof than we currently have as both normatively and descriptively valuable. Standards of proof are a mechanism for allocating the risk of factual error between parties. For example, the heightened beyond a reasonable doubt standard in criminal cases reflects an aspiration for a legal system erring more in favor of mistaken acquittals than mistaken convictions. Surprisingly, we then assign the same standard to very different cases under the justification that we accept (or should accept) the same error-distribution for those cases. However ubiquitous, this justification is twice mistaken. First, it is normatively mistaken. There are important arguments in support of a system with varying standards of proof based on welfare, fairness, and distributional considerations. Second, this justification is also positively mistaken. Decades of behavioral psychology research on jury decision-making suggests that jurors do not make decisions based on the same error-distribution for all cases. I also reply to objections against my proposal, two of which stand out. According to some scholars, for my proposal to work we would need a lot of empirical information which is difficult to obtain. I argue that, while we wait for the data, we should understand standards as sub-optimal generalizations, with concrete results that might be hard to verify. Another important objection is that we already adjust the error-distribution with other legal mechanisms, such as by adding or removing causes of action. Even if that is true, I show how such strategy is inferior to my proposal. All these considerations push in the direction of a greater variation in the number of standards. Profound policy consequences follow. We become hard-pressed to reevaluate the socially optimal error-distributions on different types cases and what should be the corresponding standards of proof.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"56 1","pages":"161"},"PeriodicalIF":0.0,"publicationDate":"2016-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68394329","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}
If legal moralism posits a normative connection between culpable wrongdoing and punishment, what should legal moralists say about cases in which responsible agents commit culpable wrongs that have not been proscribed ex ante by the state in which they occur? More succinctly, what is the status of the principle of legality according to legal moralists? I argue that the absence of law typically (but perhaps not always) provides a sufficient non-desert basis to withhold punishment from culpable wrongdoers whose punishment is deserved. I critically examine the probable implications of this way of accounting for the significance of legality.
{"title":"What's Legal About Legal Moralism?","authors":"Douglas Husak","doi":"10.2139/SSRN.2801816","DOIUrl":"https://doi.org/10.2139/SSRN.2801816","url":null,"abstract":"If legal moralism posits a normative connection between culpable wrongdoing and punishment, what should legal moralists say about cases in which responsible agents commit culpable wrongs that have not been proscribed ex ante by the state in which they occur? More succinctly, what is the status of the principle of legality according to legal moralists? I argue that the absence of law typically (but perhaps not always) provides a sufficient non-desert basis to withhold punishment from culpable wrongdoers whose punishment is deserved. I critically examine the probable implications of this way of accounting for the significance of legality.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"54 1","pages":"381"},"PeriodicalIF":0.0,"publicationDate":"2016-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68335989","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}
This Article addresses the question of federal tort liability of major corporations for serious human rights violations, particularly in the context of aiding and abetting such violations. The Article largely sets aside the familiar project of seeking right answers to perpetually unresolved doctrinal issues. Instead, the Article encourages an actual or hypothetical broad negotiating process among representatives of all interested parties. In the course of such negotiations, human rights advocates would be well-advised to seriously consider at least temporarily bargaining away their ideally preferred positions on corporate mens rea, punitive damages, standards of proof, admissibility of remedial measures, statutes of limitation, criminal liability, and other matters, if necessary to obtain broad corporate acquiescence in realistically enforceable corporate tort liability, particularly on an aiding and abetting theory, for at least the most serious underlying human rights violations.
{"title":"Negotiating the Terms of Corporate Human Rights Liability Under Federal Law","authors":"R. Wright","doi":"10.2139/SSRN.2723426","DOIUrl":"https://doi.org/10.2139/SSRN.2723426","url":null,"abstract":"This Article addresses the question of federal tort liability of major corporations for serious human rights violations, particularly in the context of aiding and abetting such violations. The Article largely sets aside the familiar project of seeking right answers to perpetually unresolved doctrinal issues. Instead, the Article encourages an actual or hypothetical broad negotiating process among representatives of all interested parties. In the course of such negotiations, human rights advocates would be well-advised to seriously consider at least temporarily bargaining away their ideally preferred positions on corporate mens rea, punitive damages, standards of proof, admissibility of remedial measures, statutes of limitation, criminal liability, and other matters, if necessary to obtain broad corporate acquiescence in realistically enforceable corporate tort liability, particularly on an aiding and abetting theory, for at least the most serious underlying human rights violations.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"53 1","pages":"579"},"PeriodicalIF":0.0,"publicationDate":"2016-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68274198","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}
Religious Americans, and many people sympathetic to them, have supported “special accommodations” or exemptions from otherwise applicable laws – unless there is a “compelling state interest” in not offering an exemption – when complying with these laws would violate religious obligation or belief. When the US Supreme Court held that the First Amendment does not usually require such exemptions, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 by unanimous vote in the House (better than the Declaration of War after Pearl Harbor) and by almost unanimous vote in the Senate, and many state legislatures have done likewise. RFRA laws aroused little public or academic controversy until after 2012, when claims for exemption were invoked in behalf of conservative Christians. But support for religious exemptions now seems to be breaking down along ideological-political lines, as in the Hobby Lobby dispute over whether a private company should have to provide for contraceptive and arguably abortive drugs in violation of the employer’s religious beliefs. This article argues that there are important drawbacks to “special accommodation”, even from the point of view of religious Americans. First, while occasional exemptions for religious people could be accommodated fairly easily in past eras of comparatively modest government, any pleas for exemption will seem more of a threat, and will be resisted more vigorously, when government tries to regulate ever more, and ever more intimate, aspects of life. Second, perhaps more subtly, by offering exemptions to any and all religions, government may encourage the balkanization of religious life and a proliferation of sects and cults, with negative implications for both the religious and the public life of the country. Third, the idea of seeking special accommodations or exemptions – which often, and perhaps increasingly, might not be available anyhow – is apt to divert religious people from putting their political energy into modifying or defeating unjust or overreaching regulatory proposals altogether, rather than merely seeking special exemptions from them. Seeking frequent exemptions and accommodations puts religious people in the invidious position of demanding special privileges. This is never an appealing, or perhaps even a viable, demand: least of all in an egalitarian society, where a core idea is rejection of special privilege. It is not sustainable anyway, beyond a limited number of exemptions, for a limited number of religious bodies, in a modestly regulated society. In an ever-more-minutely regimented society, you cannot keep demanding exemptions; and they will not be granted. It is a well-known military axiom that armies in retreat are at their most vulnerable. Religious Americans need not retreat from robust political action, merely to plead for special indulgence. It will not avail them, or not for long, if they do.
{"title":"Do Religious Exemptions Save","authors":"M. Schwarzschild","doi":"10.2139/SSRN.2930391","DOIUrl":"https://doi.org/10.2139/SSRN.2930391","url":null,"abstract":"Religious Americans, and many people sympathetic to them, have supported “special accommodations” or exemptions from otherwise applicable laws – unless there is a “compelling state interest” in not offering an exemption – when complying with these laws would violate religious obligation or belief. When the US Supreme Court held that the First Amendment does not usually require such exemptions, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 by unanimous vote in the House (better than the Declaration of War after Pearl Harbor) and by almost unanimous vote in the Senate, and many state legislatures have done likewise. RFRA laws aroused little public or academic controversy until after 2012, when claims for exemption were invoked in behalf of conservative Christians. But support for religious exemptions now seems to be breaking down along ideological-political lines, as in the Hobby Lobby dispute over whether a private company should have to provide for contraceptive and arguably abortive drugs in violation of the employer’s religious beliefs. This article argues that there are important drawbacks to “special accommodation”, even from the point of view of religious Americans. First, while occasional exemptions for religious people could be accommodated fairly easily in past eras of comparatively modest government, any pleas for exemption will seem more of a threat, and will be resisted more vigorously, when government tries to regulate ever more, and ever more intimate, aspects of life. Second, perhaps more subtly, by offering exemptions to any and all religions, government may encourage the balkanization of religious life and a proliferation of sects and cults, with negative implications for both the religious and the public life of the country. Third, the idea of seeking special accommodations or exemptions – which often, and perhaps increasingly, might not be available anyhow – is apt to divert religious people from putting their political energy into modifying or defeating unjust or overreaching regulatory proposals altogether, rather than merely seeking special exemptions from them. Seeking frequent exemptions and accommodations puts religious people in the invidious position of demanding special privileges. This is never an appealing, or perhaps even a viable, demand: least of all in an egalitarian society, where a core idea is rejection of special privilege. It is not sustainable anyway, beyond a limited number of exemptions, for a limited number of religious bodies, in a modestly regulated society. In an ever-more-minutely regimented society, you cannot keep demanding exemptions; and they will not be granted. It is a well-known military axiom that armies in retreat are at their most vulnerable. Religious Americans need not retreat from robust political action, merely to plead for special indulgence. It will not avail them, or not for long, if they do.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"28 1","pages":"185"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68436289","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}
In this short essay I ask what must someone acting in defense of others believe and with what level of credence in order not to be culpable for so acting. I focus on defense of others to avoid the issue of excuse, as the defender of others is not acting out of fear for his own safety, a fear that might excuse the defensive acts of the victim of the feared attack. I focus on beliefs and levels of credence because no defender can know for certain the factors relevant to permissible defensive actions.
{"title":"The Need to Attend to Probabilities (for Purposes of Self-Defense and Other Preemptive Actions)","authors":"L. Alexander","doi":"10.2139/SSRN.2909273","DOIUrl":"https://doi.org/10.2139/SSRN.2909273","url":null,"abstract":"In this short essay I ask what must someone acting in defense of others believe and with what level of credence in order not to be culpable for so acting. I focus on defense of others to avoid the issue of excuse, as the defender of others is not acting out of fear for his own safety, a fear that might excuse the defensive acts of the victim of the feared attack. I focus on beliefs and levels of credence because no defender can know for certain the factors relevant to permissible defensive actions.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"55 1","pages":"223"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68427808","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 American Law Institute’s draft amendments to the Model Penal Code’s sexual assault provisions address the problem of unwanted sex through the use of proxy crimes. The draft forbids sex undertaken in the absence of certain objective indicia of willingness, or in the presence of certain objective indicia of unwillingness, even though the serious harm of sex with an unwilling partner does not always result from those situations. Proxy crimes are sometimes justified, as is the draft’s requirement that an express “no” be respected in the absence of subsequent words or actions by a partner rescinding the “no.” But proxy crimes also carry risks, some of which (in addition to other problems) are displayed by the draft’s requirement that sex occur only in the presence of “positive agreement” by the partner. Like any “affirmative consent” approach, the draft’s “positive agreement” standard must either embrace requirements that many will find objectionable or risk devolving into punishment for simple, tort negligence (or less). Imposing liability on a tort negligence standard would conflict with the Model Penal Code’s general insistence on subjective liability as a predicate to criminal liability. It would also strike many as a regrettably low standard for labelling an actor as a sex offender, and it would risk deterrent losses over time by diluting the stigma associated with the label.
{"title":"Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, and Other Difficulties of 'Affirmative Consent' in the ALI's Draft Sexual Assault Provisions","authors":"Kevin R. Cole","doi":"10.2139/SSRN.2670419","DOIUrl":"https://doi.org/10.2139/SSRN.2670419","url":null,"abstract":"The American Law Institute’s draft amendments to the Model Penal Code’s sexual assault provisions address the problem of unwanted sex through the use of proxy crimes. The draft forbids sex undertaken in the absence of certain objective indicia of willingness, or in the presence of certain objective indicia of unwillingness, even though the serious harm of sex with an unwilling partner does not always result from those situations. Proxy crimes are sometimes justified, as is the draft’s requirement that an express “no” be respected in the absence of subsequent words or actions by a partner rescinding the “no.” But proxy crimes also carry risks, some of which (in addition to other problems) are displayed by the draft’s requirement that sex occur only in the presence of “positive agreement” by the partner. Like any “affirmative consent” approach, the draft’s “positive agreement” standard must either embrace requirements that many will find objectionable or risk devolving into punishment for simple, tort negligence (or less). Imposing liability on a tort negligence standard would conflict with the Model Penal Code’s general insistence on subjective liability as a predicate to criminal liability. It would also strike many as a regrettably low standard for labelling an actor as a sex offender, and it would risk deterrent losses over time by diluting the stigma associated with the label.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"53 1","pages":"507"},"PeriodicalIF":0.0,"publicationDate":"2015-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68248627","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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