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
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.
"In this volume one can find both the cutting edge theoretical
issues on criminal law and the thrusts and parries of the leading
thinkers who have engaged those issues. Moreover, not only
academics interested in criminal law, but students and
practitioners as well, will find this to be a truly valuable
resource."
--Larry Alexander
The University of Texas School of Law
"Criminal Law Conversations is a bravura feat of intellectual
entrepreneurship by Robinson, Ferzan and Garvey. It is a feast of
interchange and provocation. Although I feel a bit sheepish about
blurbing the book because I am an included author, the volume is
indispensable reading for criminal law scholars."
--Stephen Morse
University of Pennsylvania Law School
"The criminal law allocates huge amounts of public resources with
no accountability for the resulting impacts on public well-being.
These conversations should be helpful to anyone interested in
assessing and, perhaps addressing, this archaic dysfunction."
-- Michael Marcus
Judge, Circuit Court, Multnomah County, Oregon
"I had the honor to follow many of these conversations as they
unfolded online. No orthodox collection of essays could have
gathered such an extravagantly distinguished list of contributors,
nor focused their minds so exactly on each other's concerns, nor
included such an extraordinary range of perspectives, nor
maintained such uniformly high standards throughout. This is a
unique product of collective enterprise, and it provides an
unsurpassed guide to
contemporary criminal law scholarship."
--John Gardner
Professor of Jurisprudence, University of Oxford
"Robinson, Garvey & Ferzan invent a brilliantly useful new format
for an edited volume. They provide both a wonderful introduction to
a comprehensive array of complex topics in criminal law, and also a
place where the conversation between authors and commentators
sharpens the cutting edge for understanding on those topics."
--Richard McAdams
The University of Chicago Law School
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