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This chapter details the evolution of the American Law Institute’s (ALI’s) approach to criminal law reform, eventuating in the Model Penal Code (MPC). It begins with the pre-MPC committees and reports. Here, we see how the chaotic state of the criminal law called for reform and how the need for direction transformed the project from Restatement to model code. The chapter then turns to the MPC, discussing how it innovated American criminal law and briefly surveying its substantial impact on law reform. It then sets forth the arguments for updating the MPC, including the recent projects that revised both sentencing and sexual assault. Finally, it evaluates the MPC. If we look at what motivated the first ALI committee on criminal law reform and what MPC Reporter Herbert Wechsler’s key aspirations were, the success of the MPC is mixed. Some key provisions were sparsely adopted, and some were later undermined. And the Code never offered the kind of uniformity that the initial committee sought. But it is a mistake to ask whether any state’s adoption of the code in whole or in part defines it success. Rather, the MPC’s success lies in the fact that it is a theoretical and conceptual lodestar for past and future reformers.

What makes it permissible to reach out to hold someone’s hand on a first date, or to rub a friend’s back when she is crying? This paper, a contribution to the special issue on Doug Husak, argues that conventions, context, and relationships play a role in shifting normative boundaries, such that the default rule becomes that it is permissible to touch someone until she dissents (thereby creating a ‘dissent-sensitive permission’). Part I of this paper focuses on convention-type cases, contrasting dates with the intentional touchings that occur on crowded streets or while playing football. Part II then addresses the range of normative justifications that track these different cases. Part III adds a different way that dissent-sensitive permissions can arise—from relationships and common ground. Part IV unearths the underlying rights-structure that my view presupposes and returns to the question of whether the theory I have on offer is one of consent. Part V argues that this approach, that these are alterations of permissibility, is superior to the view that conventions only impact the actor’s blameworthiness by rendering his belief reasonable. Part VI raises questions of whether our understanding of consent dictates our understanding of dissent.

Criminal theorists struggle to account for the “totality principle”—the idea that no matter how many small crimes you commit, your punishment should not exceed that for a more serious offense. Andrew Ashworth, for instance, argues that “overall proportionality” should be preserved but that this is a “pragmatic” solution. This paper argues that a retributivist can accept overall proportionality without abandoning her retributivism. I offer two lines of defense. The first is to show that the unit that we are aggregating may be more complex than first appears. The second relies on insights from the headaches versus lives literature, and how we should rescue one person dying before preventing one million people from headaches. The harms that we impose on others, and the harms that defendants suffer because of punishment, do not exist on one single scale. Hence, the true problem, I maintain, is not how culpability functions, but how our particular mode of punishment does. When we only have one primary mechanism to punish (particularly once we start aggregating)—put people in prison—then aggregating offenses appears as though it must quickly lead to numerous acts of littering being punished more than arson. With a more nuanced punitive response, we can punish minor offenses every time without surpassing the kinds of punishment we impose on more significant offenses.

In The Realm of Criminal Law, Antony Duff argues that the criminal law’s realm is bounded by territory. This is because a polity decides what it cares about in crafting its civic home, and it extends its rules and hospitality to guests (non-citizens). I question whether the most normatively attractive conception of a Duffian polity would be bounded by territory, or whether it would exercise far more extensive jurisdiction over its citizens wherever in the world they may be (active personality) and over harm to its citizens/interests wherever in the world the attacks occur (passive personality).

Adil Ahmad Haque argues that before attacking, combatants must reasonably believe that the target is a combatant and the gains must be sufficiently great so as to be in compliance with the doing/al...

This chapter addresses consent and estoppel, raising questions about their meaning, implications, and justification. It disentangles various bases on which one could lose the right to redress for a civil wrong. One such basis is that an individual actually or apparently consented to conduct an act that would, but for consent, be wrongful. But this chapter cautions that it is important to recognize that apparent consent is not a form of consent. Another basis upon which a right to redress can be lost is where an underlying primary right is deemed forfeited though the right-holder’s insincere act, as where duty-holders are duped into committing a wrong because the “victim” seeks a valued remedy. Finally, this chapter explains that the overbroad rubric of estoppel conceals at least three other distinct bases on which the exercise of a right to redress may be varied or suspended.

Doctrinally, both consent and estoppel seem to lack a conceptual core. If consent is the exercise of a normative power predicated on our autonomy interests, then sometimes what we call “consent” is not really consent. And if estoppel is about barring/stopping/hindering one’s ability to make a claim, but not about changing the underlying rights and duties themselves, then sometimes what courts deem to be estoppel is not really estoppel. Instead, consent has alternative normative groundings, and estoppel seems to be employed as the term by which courts can simply reach what they deem to be the fair or equitable result. This paper aims to make sense of these categories, venturing into both consent and estoppel, but focusing more on the far more undertheorized estoppel. As it surveys these doctrines at work in criminal law, tort law, property, and IP, it points to the sorts of changes in normative relations that appear to be at work and what might ground them. Ultimately, some of our practices make far more sense than others, although our nomenclature makes little sense at all. Apparent consent is not consent at all. And estoppel masks distinctions between “forfeiture by insincere act” (a forced shift in rights and duties), other cases that should be deemed exercises of normative powers, other instances that should be seen as tort-like for creating liabilities, and thinner losses of the ability to complain/assert one’s rights. Even this final forfeiture of mere assertability proves questionable because when it does not camouflage a more significant estoppel, it ultimately produces a result that may be disproportionate to A’s behavior and B’s reliance. Ultimately, I hope to show that our concepts are conflating radically different sorts of relations and that these labels prevent us from scrutinizing our practices as carefully as we should.

In Helen Frowe’s book, Defensive Killing, she argues that some cases of seemingly futile self-defense are actually instances of justifiable defense of the victim’s honor. This paper explores Frowe’s claim, first by isolating the central cases and then by examining her rejection of punitive reasons. From there, the paper examines Frowe’s understanding of “defense of honor,” ultimately suggesting that Frowe’s conception is best construed as action that has expressive, but not defensive, value. From there, I turn to two more general puzzles. First, what if the defender mistakenly believes that she can successfully defend and acts for that reason, but the reason that actually supports her action is not one she is acting in light of? And, second, how ought we to understand the interests of an aggressor who has forfeited his rights?

In addition to normative powers by which we alter our rights and duties, we can also forfeit rights. Culpable aggression forfeits the aggressor's right against the victim's use of defensive force. So, what happens when an aggressor “fakes it”? If a culpable aggressor is simply bluffing, has he still forfeited his rights? Because there is no threat, leading accounts of self-defense deny that there is forfeiture.This paper argues that individuals alter their rights and duties through insincere acts. Specifically, when one person culpably causes another person to believe that a normative power has been exercised or a right forfeited, that normative power is in fact exercised or the right is forfeited. An insincere promise counts as a promise; insincere consent counts as consent; and insincere abandonment counts as abandonment. And, the insincere threat forfeits the bluffer's rights to the same extent as a real threat would.

Many criminal law scholars have criticized the responsible corporate officer doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the responsible corporate officer doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, whether the duty is grounded in statute, cause of peril, or contract, and what the content of the duty is. Although the responsible corporate officer doctrine unveils questions we may have about duty generally, it is no more problematic than other duty-supplying doctrines in the criminal law.

This chapter examines the moral justifiability of “stand your ground” (SYG) laws. First, it sets forth the parameters of self-defense as understood in the philosophical literature. Next, it focuses on the necessity limitation and questions whether this limitation can be defensibly weakened to accommodate SYG laws. Finding no comfort for SYG statutes in a weakened necessity limitation, the chapter turns to the proportionality constraint and examines approaches that increase the interests that may permissibly be defended as well as approaches that abandon proportionality altogether. Finally, this chapter maintains that the most perspicuous lens through which to view SYG laws is that of law enforcement because what SYG laws actually do is place citizens in the role of police. The justifiability of such enforcement authority turns, then, on two further questions. It must be appropriate for citizens to serve this function. But second, it must be appropriate for the state to stand its ground.

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when speakers use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how (to teach students) to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well.

In criminal law, if the defendant omits to perform an action, he will typically not be liable unless he is under a duty to act. This chapter argues that the reason that individuals do not generally have a duty to rescue is part and parcel of a broader principle that also applies to acts. The means principle underlies the reason individuals need not act absent a duty, the constraint that their bodies and property may not be appropriated for the general good, and the permissibility of performing actions that allow others to be harmed. This principle also extends to a set of cases that look nothing like omissions: mediated harms, in which an attacker will harm a third party if and only if the defender fights back. Omissions, then, are not special, as the normative principle that underlies the duty requirement exists both when we act and when we omit.

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted.

When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so? Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage in conduct that grounds the permissibility of the defender’s behavior whereas the provocateur’s behavior does not justify the respondent’s use of force against him. In addition, this article rejects that the basis of this forfeiture can be found in the doctrines surrounding when and why mitigation for provocation is appropriate for the respondent. Provocateurs forfeit their defensive rights for the very simple reason that they start the fight. This forfeiture occurs when they behave culpably, meaning that they subjectively appreciate that they are running the risk of causing force to be used against them and they engage in this behavior without justification or excuse. The question of when the provocateur’s behavior is justified is incredibly complex. It requires analysis of when it is that one is justified in increasing the risk of another’s wrongdoing. Any analysis of this justification must take seriously the liberty rights of the potential provocateur to engage in otherwise permissible behavior. Moreover, the determination of whether the provocateur is justified will turn on whether the later acts that he puts into motion are themselves justified. Thus, when Charles Bronson in the movie Death Wish presents himself as a victim so that muggers will attack him, the justifiability of his conduct in appearing as a vulnerable victim will turn on whether he is entitled to engage in this conduct, intending to later defend himself. This article argues that in Death Wish-type cases, the reason that the provocateur is not justified is because he becomes a vigilante, thereby usurping the role of the state and undermining rule of law values.

In The Ends of Harm, Victor Tadros claims that the general justifying aim of the criminal law should be general deterrence. He also takes seriously that we cannot use people as a means, and thus he argues that we may only punish people in the name of general deterrence who have a ‘duty’ to suffer. Tadros claims that this duty arises as follows: An offender initially has a duty not to harm the victim. If the offender violates that duty, the offender still has a duty to stop the harm from occurring (so that, for example, an offender would have to jump in front of his own bullet). And if the harm does occur, then the offender has a duty to rectify that harm. This duty to rectify, argues Tadros, requires the defendant not only to compensate the victim but also to protect the victim to the extent that he would have been able to have been harmed to prevent the threat from occurring. Tadros further advances intricate arguments for why the state may therefore punish the offender to protect other potential victims to the extent of the offender’s duty to rectify. This symposium contribution seeks to explore three problems with Tadros’ analysis, ultimately arguing that Tadros’ theory fails on its own terms. First, attempts present a substantial problem for Tadros’ regime because attempts do not give rise to duties to prevent harm because there is no harm to be prevented. Tadros’ attempt to account for attempts, as completed offenses of diversions of security resources, ultimately leads to punishments that bear little resemblance to the crime attempted. Such a wildly counterintuitive result creates problems for a regime premised on general deterrence, which must be understood and respected. Second, Tadros’ regime will often exempt the rich from suffering criminal punishment. Tadros claims that duties to prevent harms from occurring (by jumping in front of bullets) are only enforceable when compensation will be inadequate. However, affluent offenders may be able to fully compensate. Moreover, since the scope of the duty to suffer will be determined by what remains of the duty after the victim is compensated, affluent offenders will be able to compensate more and thereby suffer less. Again, the actual sentences will thereby bear little resemblance to the rationale for criminalization, thus threatening the deterrent message of the law. Moreover, a system that exacerbates distributive inequalities will not achieve public respect. Third, Tadros cannot justify taking the duty that the defendant owes to the victim and forcing the victim to transfer this asset to the state. In his quest to articulate a theory that does not impermissibly use defendants, he ultimately endorses a theory that impermissibly uses their victims. He thus fails to achieve the very goal he sets for himself, which is to achieve general deterrence without impermissibly using anyone.

R. A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford, UK: Hart Publishing, 2007), 322pp. Antony Duff's Answering for Crime 1 does not have many answers. Nor doe...

This commentary on Michael Cahill’s Grading Arson argues that Cahill’s analysis inevitably leads to three possible conclusions. First, arson does not belong in criminal codes. Second, crimes of manner do not belong in criminal codes. And, third, the special part needs serious reconsideration. Although Cahill is reticent to draw any of these conclusions, this commentary urges Cahill to embrace all three.

This is a review essay of Peter Westen's "The Logic of Consent". I argue that Westen's book is philosophically informed, legally grounded, and well argued. It is a must-read for rape reformers, and yet it does not, itself, seek to reform rape laws. Rather, Westen's project is one of conceptual clarification. As Westen tells us in the Preface, we cannot resolve the justice of statutes regarding offenses of non-consent without first clarifying to ourselves and to others the diverse and potentially deceptive meanings of consent. In the first part of the review, I canvass Westen's delineation of the four different conceptions of consent, and argue that Westen succeeds in tracking our diverse and deceptive usages of consent. I then set forth two examples of Westen's achievement in separating normative, conceptual, and empirical arguments that occur within Westen's broader conceptions. The vast majority of Westen's arguments are devoted to individual debates within rape law, and thus, if "The Logic of Consent" lacks anything, it is a sense of perspective. In the second part of the review, I seek to place Westen's arguments in context. First, I argue that Westen's arguments demonstrate that consent is a species of choice, and its normative force is dependent upon its voluntariness. I contend that consent thus parallels our other assessment of choice within criminal law - choices by which we hold defendants criminally responsible. Secondly, I set forth the relationship between Westen's conceptions of consent. I argue that, with one exception, these conceptions do not compete; we simply conflate them. I then claim that the logical conclusion of Westen's own argument is that the law should jettison the one truly competing conception.

Critics have long sought the abolition of the felony murder rule, arguing that it is a form of strict liability. Despite widespread criticism, the rule remains firmly entrenched in many states' criminal statutes. In "Merger and Felony Murder," Professor Claire Finkelstein reconciles herself to the current state of affairs, and seeks to make "an incremental improvement" to the doctrine. She offers a new test for felony murder's merger limitation, which she believes will make merger less "mysterious" and its application "substantially clearer." Briefly put, Finkelstein claims that to understand merger, we must recognize that it is an analytically necessary part of felony murder that the defendant commit two acts - a felony and a killing. Thus, a killing merges with the felony when we have only one act instead of two. To make this determination, Finkelstein articulates a "redescriptive" test that tells us when the felony can be redescribed as a killing. Despite this project's potential, I believe that Finkelstein's proposed merger test, far from improving our understanding of merger, further confuses the doctrine. Finkelstein starts from the false conceptual premise that felony murder requires both a felony and then a distinct act of killing. There is simply no support for this claim. Nor does the promise of this project bear out in the application of Finkelstein's test to actual cases. First, the test cannot be squared with two other limitations on felony murder liability. Second, Finkelstein's test is guilty of the very arbitrary application for which she criticizes other tests. Finally, Finkelstein unsettles the law by turning paradigmatic cases on their heads. Finkelstein's theory, while claiming to refine felony murder, ultimately abolishes the doctrine as we know it and replaces it with a doctrine that seems even more unacceptable.

In this Article, I claim that justified self-defense is best understood as having both objective and subjective aspects. Part I argues against the fully objective view, demonstrating that objectivists about justification often take contradictory positions on justification and justifiable risks. I claim that we can unravel this paradox if we recognize that in some instances, law and morality both recognize the relevance of epistemic viewpoints for the rightness of action. Questions of distribution are one such instance, and I maintain that self-defense is grounded in distributive justice. In Part II, I contend that self-defense is not wholly subjective, however. The subjectivist position justifies too much, by denying that conduct may be reasonable but wrong and by creating an asymmetry between offenses and defenses. Cutting through this contradiction, I claim that self-defense's triggering conditions are defined objectively, while the limitations on self-defense's use are assessed subjectively. This, too, I claim, is in keeping with self-defense's distributive nature. Part III patrols the borderline of the triggering condition/limitation distinction. I define the objective triggering-conditions as culpability-based, and locate the appropriate epistemic vantage point in the self-defender. Finally, I claim that the subjective requirement is fully subjective: that the defender has the right to act so long as he believes there is any probability of attack, and that an inquiry into the reasonableness of the defender's belief is not required.

Criminal law theorists argue that culpability is a prerequisite for blameworthiness and responsibility. The definition above renders our endeavor circular. What does it mean to say someone is culpable? For some time, we thought we knew the answer to this question. Culpability was about choosing to commit a wrong, and the nature of this choice determined the degree of culpability. This is the view of the Model Penal Code. Yet, as this Symposium reveals, our consensus has devolved to dissensus. Criminal law theorists are now challenging the conventional framework’s ability to capture culpability adequately. These theorists argue that our current culpability theory pays insufficient attention to the motives, emotions, and desires of the actor and that these elements are a constitutive part of culpability.