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Overview

Criminal Law Conversations provides an authoritative overview of contemporary criminal law debates in the United States. This collection of high caliber scholarly papers was assembled using an innovative and interactive method of nominations and commentary by the nation's top legal scholars. Virtually every leading scholar in the field has participated, resulting in a volume of interest to those both in and outside of the community. Criminal Law Conversations showcases the most captivating of these essays, and provides insight into the most fundamental and provocative questions of modern criminal law.

Product Details

ISBN-13: 9780199861279
Publisher: Oxford University Press
Publication date: 11/01/2011
Edition description: Reprint
Pages: 762
Product dimensions: 6.60(w) x 5.60(h) x 1.00(d)

About the Author

Paul H. Robinson is Professor of Law at the University of Pennsylvania School of Law and most recently the author of Distributive Principles of Criminal Law (OUP, 2008).

Stephen Garvey is Professor of Law at Cornell University School of Law.

Kimberly Kessler Ferzan is Professor of Law at Rutgers University School of Law, Camden.

Table of Contents

i. Principles
Chapter 1. Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law
Meir Dan-Cohen
Comments:
Kyron Huigens-Duress Is Never a Conduct Rule
Samuel W. Buell-Decision Rule as Notice: The Case of Fraud
Anne M. Coughlin-Of Decision Rules and Conduct Rules, or Doing the Police in Different Voices
Luís Duarte d'Almeida-Separation, But Not of Rules
Adil Ahmad Haque-The Constitutive Function of Criminal Law
Eric J. Miller-Are There Two Types of Decision Rule?
Malcolm Thorburn-A Liberal Criminal Law Cannot Be Reduced to These Two Types of Rules
Reply:
Meir Dan-Cohen
Chapter 2. Empirical Desert
Paul H. Robinson
Comments:
Mary Sigler-The False Promise of Empirical Desert
Adam J. Kolber-Compliance-Promoting Intuitions
Michael T. Cahill-A Fertile Desert?
Alice Ristroph-The New Desert
Youngjae Lee-Keeping Desert Honest
Matthew Lister-Desert: Empirical, Not Metaphysical
Alice Ristroph-Response to Lee and Lister
Joseph E. Kennedy-Empirical Desert and the Endpoints of Punishment
Andrew E. Taslitz-Empirical Desert: The Yin and Yang of Criminal Justice
Adil Ahmad Haque-Legitimacy as Strategy
Laura I. Appleman-Sentencing, Empirical Desert, and Restorative Justice
Reply:
Paul H. Robinson
Chapter 3. Defending Preventive Detention
Christopher Slobogin
Comments:
Michael Louis Corrado-Slobogin on Dehumanization
Michael Marcus-Don't Abandon Sentencing Reform to Defend Preventive Detention
Rinat Kitai-Sangero-The Presumption of Innocence versus Preventive Detention
Matt Matravers-Unreliability, Innocence, and Preventive Detention
Joseph E. Kennedy-The Dangers of Dangerousness as a Basis of Incarceration
Reply:
Christopher Slobogin
Chapter 4. The Economics of Crime Control
Doron Teichman
Comments:
Russell D. Covey-The Limits of the Economic Model: Becker's Crime and Punishment
Alon Harel-The Economic Analysis of Crime Control: A Friendly Critique
Keith N. Hylton-Effi cient Deterrence and Crime Control
Morris B. Hoffman-Law, Economics, and Neuroethical Realism
Reply:
Doron Teichman
Chapter 5. The Difficulties of Deterrence as a Distributive Principle
Paul H. Robinson
Comments:
Russell D. Covey-Deterrence's Complexity
Douglas A. Berman-Making Deterrence Work Better
Doron Teichman-In Defense of Deterrence
Jonathan S. Masur, Richard H. McAdams, and Thomas J. Miles-For General Deterrence
Reply:
Paul H. Robinson
Chapter 6. Why only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions
Alon Harel
Comments:
Miriam Baer-Eliminating the Divide Between the State and Its Citizens
Doron Teichman-Why the State May Delegate the Infliction of Criminal Sanctions
Malcolm Thorburn-Why Only the State May Decide when Sanctions Are Appropriate
Stuart P. Green-Why Do Privately Inflicted Criminal Sanctions Matter?
Reply:
Alon Harel
Chapter 7. Results Don't Matter
Larry Alexander and Kimberly Kessler Ferzan
Comments:
Gerald Leonard-Some Reasons Why Criminal Harms Matter
Peter Westen-Why Criminal Harms Matter
Thomas Morawetz-Results Don't Matter, But . . .
Jeremy Horder-On the Reducibility of Crimes
Reply:
Larry Alexander and Kimberly Kessler Ferzan
Chapter 8. Post-Modern Meditations on Punishment: On the Limits of Reason and the Virtue of Randomization Bernard E. Harcourt
Comments:
Alice Ristroph-Games Punishers Play
Michael M. O'Hear-Chance's Domain
Alon Harel-The Lure of Ambivalent Skepticism
Ken Levy-Punishment Must Be Justified Or Not at All
Reply:
Bernard E. Harcourt
Chapter 9. Remorse, Apology, and Mercy
Jeffrie G. Murphy
Comments:
Sherry F. Colb-Retaining Remorse
Stephanos Bibas-Invasions of Conscience and Faked Apologies
Susan Bandes-Evaluation of Remorse Is Here to Stay: We Should Focus on Improving Its Dynamics
Lisa Kern Griffin-Insincere and Involuntary Public Apologies
Janet Ainsworth-The Social Meaning of Apology
Reply:
Jeffrie G. Murphy
Chapter 10. Interpretive Construction in the Substantive Criminal Law
Mark Kelman
Comments:
Paul Litton-Unexplained, False Assumptions Underlie Kelman's Skepticism
John Mikhail-Unconscious Choices in Legal Analysis
Margaret Raymond-Interpretive Constructions and the Exercise of Bias
Alice Ristroph-Interpretive Construction and Defensive Punishment Theory
Reply:
Mark Kelman
Chapter 11. Criminalization and Sharing Wrongs
S.E. Marshall and R.A. Duff
Comments:
Stuart P. Green-Sharing Wrongs Between Criminal and Civil Sanctions
Shlomit Wallerstein-Victim, Beware! On the Dangers of Sharing Wrongs with Society
Adil Ahmad Haque-Sharing the Burdens of Justice
Matthew Lister-Contractualism and the Sharing of Wrongs
Michelle Madden Dempsey-Sharing Reasons for Criminalization? No Thanks . . . Already Got 'Em!
Andrew E. Taslitz-Public versus Private Retribution and Delegated Revenge
Reply:
S.E. Marshall and R.A. Duff
Chapter 12. Monstrous Offenders and the Search for Solidarity Through Modern Punishment
Joseph E. Kennedy
Comments:
Marianne Wesson-Domesticated Monsters
Janet Ainsworth-"We Have Met the Enemy and He Is Us": Cognitive Bias and Perceptions of Threats
Douglas A. Berman-Have Good Intentions Also Fueled the Severity Revolution?
Reply:
Joseph E. Kennedy ii. Doctrine
Chapter 13. Against Negligence Liability
Larry Alexander and Kimberly Kessler Ferzan
Comments:
Leo Zaibert-For Negligence Liability
Michelle Madden Dempsey-The Object of Criminal Responsibility
Alan Brudner-Is Negligence Blameless?
Stephen P. Garvey-Fatally Circular? Not!
Andrew E. Taslitz-Cognitive Science and Contextual Negligence Liability
Kenneth W. Simons-The Distinction Between Negligence and Recklessness Is Unstable
Reply:
Larry Alexander and Kimberly Kessler Ferzan
Chapter 14. Rape Law Reform Based on Negotiation: Beyond the No and Yes Models
Michelle J. Anderson
Comments:
Andrew E. Taslitz-Self-Deception and Rape Law Reform
Kimberly Kessler Ferzan-Sex as Contract
Robin Charlow-Negotiating Sex: Would It Work?
Sherry F. Colb-Conversation Before Penetration?
Marianne Wesson-You Can't Get Away from Consent
Reply:
Michelle J. Anderson
Chapter 15. Provocation: Explaining and Justifying the Defense in Partial Excuse, Loss of Self-Control Terms
Joshua Dressler
Comments:
Susan D. Rozelle-He Had It Coming: Provocation as a Partial Justification
Vera Bergelson-Provocation: Not Just a Partial Excuse
Marcia Baron-Reframing the Issues: Differing Views of Justification and the Feminist Critique of Provocation
Joan H. Krause-Tolerating the Loss of Self-Control
Kenneth Simons-Excuse Doctrine Should Eschew Both the Reasonable and the Ordinary Person
Stephen P. Garvey-Get Rid of Adequate Provocation!
Marianne Wesson-Enforcing Virtue with the Law of Homicide
Reply:
Joshua Dressler
Chapter 16. Objective Versus Subjective Justifi cation: A Case Study in Function and Form in Constructing a System of Criminal Law Theory
Paul H. Robinson
Comments:
Peter Westen-A Platonic Justification for "Unknowing Justification"
Shlomit Wallerstein-The Third, Combined, Theory for Justifications
Mitchell N. Berman-In Defense of Subjective Justifications
John Mikhail-Constraining the Necessity Defense
Reply:
Paul H. Robinson 361
Chapter 17. Self-Defense and the Psychotic Aggressor
George P. Fletcher and Luis E. Chiesa
Comments:
Boaz Sangero-"Self-Defense and the Psychotic Aggressor": What About Proportionality?
John Mikhail-Self-Defense Against Wrongful Attack: The Case of the Psychotic Aggressor
Sherry F. Colb-Justifying Homicide Against Innocent Aggressors Without Denying Their Innocence
Shlomit Wallerstein-Two Flaws in the Autonomy-Based Justification for Self-Defense
Whitley R.P. Kaufman-Problems for the Autonomy Theory of Self-Defense
Reply:
George P. Fletcher and Luis E. Chiesa
Chapter 18. Self-Defense Against Morally Innocent Threats
Jeff McMahan
Comments:
Adil Ahmad Haque-Rights and Liabilities at War
Shlomit Wallerstein-Why Causal Responsibility Matters
Kimberly Kessler Ferzan-Can't Sue; Can't Kill
Whitley R.P. Kaufman-Can "Moral Responsibility" Explain Self-Defense?
Victor Tadros-Doubts About the Responsibility Principle
Reply:
Jeff McMahan
Chapter 19. Self- Defense, Imminence, and the Battered Woman
Whitley R.P. Kaufman
Comments:
Gideon Yaffe-The Real Link Between Imminence and Necessity
Marcia Baron-In Defense of the Proxy Thesis
Kimberly Kessler Ferzan-The Values and Costs of Imminence
Joan H. Krause-Imminence Reconsidered: Are Battered Women Different?
Jeremy Horder-The "Imminence" Requirement, Battered Women, and the Authority to Strike Back
Reply:
Whitley Kaufman
Chapter 20. Reasonable Provocation and Self-Defense: Recognizing the Distinction Between Act Reasonableness and Emotion Reasonableness
Cynthia Lee
Comments:
Susan D. Rozelle-Making Waves: Radicalizing Act Reasonableness
Carissa Byrne Hessick-Is an Act Reasonableness Inquiry Necessary?
Terry A. Maroney-Differentiating Cognitive and Volitional Aspects of Emotion in Self-Defense and Provocation
Caroline Forell-Norms, Proportionality, Provocation, and Imperfect Self-Defense
Jeremy Horder-Different Ways to Manifest Reasonableness
Kenneth W. Simons-Requiring Reasonable Beliefs About Self-Defense Ensures that Acts Conforming to Those Beliefs Are Reasonable
Reply:
Cynthia Lee
Chapter 21. Against Control Tests for Criminal Responsibility
Stephen J. Morse
Comments:
Stephen P. Garvey-The Folk Psychology of Self-Control
Michael Louis Corrado-Morse on Control Tests
Susan D. Rozelle-Sometimes a Control Test Is Just a Control Test
Terry A. Maroney-Why Is a Folk-Psychological Account of Loss of Control Necessary (And What Precisely Is It)?
Robert F. Schopp-Cognition, Rationality, and Responsibility
Reply:
Stephen J. Morse
Chapter 22. Abolition of the Insanity Defense
Christopher Slobogin
Comments:
Susan D. Rozelle-No Excuse for You
Sherry F. Colb-Not By Cognition Alone
Paul Litton-Against Integrationism
Matt Matravers-Justifying Defenses
Reply:
Christopher Slobogin
Chapter 23. Entrapment and the "Free Market" for Crime
Louis Michael Seidman
Comments:
Sherry F. Colb-Making Sense of Entrapment Law After the Death of Lochner
Miriam Baer-Entrapment and the Quandary of the Undercover Investigation
Bruce Hay-An Enforcement Policy Perspective on Entrapment
Richard H. McAdams-The Entrapment Defense Defended
Reply:
Louis Michael Seidman iii. Administration
Chapter 24. The Political Economy of Criminal Law and Procedure: The Pessimists' View
Richard H. McAdams
Comments:
Darryl K. Brown-The Enduring Pattern of Broad Criminal Codes and a Path for Structural Change
Samuel W. Buell-The Sources of Overbreadth
Joseph E. Kennedy-Why Here and Why Now? Bringing History and Sociology to Bear on Punitive Pathology
Andrew E. Taslitz-The Political Economy of Prosecutorial Indiscretion
Rachel E. Barkow-An Ounce of Prevention: Realistic Treatment for Our Pathological Politics
Ronald F. Wright-Prosecutor Elections and Overdepth in Criminal Codes
Reply:
Richard H. McAdams
Chapter 25. Against Jury Nullification
Andrew D. Leipold
Comments:
Richard H. McAdams-Jury Nullification Checks Prosecutorial Power
Carol S. Steiker-Sculpting the Shape of Nullification Through Jury Information and Instruction
Sherry F. Colb-Jury Nullification and Erroneous Acquittals: Getting the Causation Backwards
Josh Bowers-Accuracy and Legitimacy
Reply:
Andrew D. Leipold
Chapter 26. Race-Based Jury Nullification: Black Power in the Criminal Justice System
Paul Butler
Comments:
Lawrence Rosenthal-Confusing Cause and Effect
Robin Charlow-The Effect of Race-Based Jury Nullification on Baston
LaJuana Davis-The Pernicious Myth of Racial Jury Nullification
Sherry F. Colb-Rejecting Racial Jury Nullification
Bennett Capers-On Racially Based Jury Nullification
Josh Bowers-Grand-Jury Nullification: Black Power in the Charging Decision
Reply:
Paul Butler
Chapter 27. In Support of Restorative Justice
Erik Luna
Comments:
Stephanos Bibas-Restoration, But Also More Justice
David Donlinko-Restorative Caveats
Margareth Etienne-Restoring Justice Through Individualized Processes
Joseph E. Kennedy-Restore to What? Supplementing Restorative Justice
Michael M. O'Hear-Dangers of the Big Tent
Robert Weisberg-Luna-Inspired Speculations on Restorative Justice
Reply:
Erik Luna
Chapter 28. The Virtues of Offense/Offender Distinctions
Douglas A. Berman
Comments:
Richard E. Myers II-From Each According to His Ability
Adam J. Kolber-Characteristics Related to Punishment Experience
Nancy Gertner-Offense/Offender Distinction and Competence
Laura I. Appleman-Splitting the Baby: The Danger of Distinguishing Between Offense and Offender Characteristics
Joseph E. Kennedy- Blakely, Booker, Accountability, and Intelligibility
Margareth Etienne-In Need of a Theory of Mitigation
Reply:
Douglas A. Berman
Chapter 29. The Heart has its Reasons: Examining the Strange Persistence of the American Death Penalty
Susan A. Bandes
Comments:
Douglas A. Berman and Stephanos Bibas-The Heart Has Its Value: The Death Penalty's Justifi able Persistence
Mary Sigler-Emotions, Retributivism and the Death Penalty
Jeffrie G. Murphy-When Clearly Understood, Retributive Theory Has Much To Offer
Robert F. Schopp-Reason and Emotion in Capital Sentencing
Joseph E. Kennedy-Outrage versus Anger and Hatred
Carol S. Steiker-Will Empathy Kill the Death Penalty, or Vice Versa?
LaJuana Davis-Overriding Emotion
Terry A. Maroney-Can the Theory and Practice of Capital Punishment Be More Emotionally Intelligent?
Reply:
Susan A. Bandes
Chapter 30. Mercy's Decline and Administrative Law's Ascendance
Rachel E. Barkow
Comments:
Ronald F. Wright and Marc L. Miller-Subjective and Objective Discretion of Prosecutors
Douglas A. Berman-Mercy's Disguise, Prosecutorial Power, and Equality's Modern Construction
Stephanos Bibas-Political versus Administrative Justice
Andrew E. Taslitz-The Decline of Criminal Law Representative Populism
Reply:
Rachel E. Barkow
Chapter 31. Criminal Law Comes Home
Jeannie Suk
Comments:
Melissa Murray-The Private Life of Criminal Law
Laura A. Rosenbury-Whose Privacy?
Aya Gruber-From Neoliberalism to Libertarianism: Why Neither Criminalization Nor Privacy Is the
Answer for Battered Women
Jennifer Collins-Criminal Law Comes Home to a Family
Cheryl Hanna-Because Breaking Up Is Hard To Do
Emily J. Sack-The Crime of Domestic Violence
Deborah Tuerkheimer-Domesticating Criminal Law: A Normative Defense
Alafair Burke-Domestic Violence Misdemeanor Prosecutions and the New Policing
Reply:
Jeannie Suk

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