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According to John Goldberg and Ben Zipursky ("Goldursky"), there are two central pillars to tort law, pillars that are best explicated by civil recourse theory. Torts are legally recognized wrongs, and the power to seek redress is part of the Lockean bargain. Using the recent question of whether nondisclosure agreements (NDAs) should be permitted, this Article unearths an instability in the kind of normativity upon which Goldursky relies. Specifically, this paper explores how the unenforceability or bans on NDAs premised upon third party harms may presuppose the victim has a duty to rescue these third parties. I begin by revealing the underlying moral relationship at the heart of these potential duties. From there, I explore how these sorts of arguments cannot easily be voiced within the presuppositions of civil recourse theory. Finally, I consider the pressure points within civil recourse theory that could potentially take on board these moral considerations. My bottom line is simple: Whichever way one thinks about NDAs and the duty to rescue, a dilemma is created for Goldursky. There is simply a mismatch between the kind of arguments that one can make about why it would be (in)appropriate to limit the plaintiff's cause of action and what the underlying content of tort law should be. Ultimately, the kind of normativity that they need to understand the Lockean bargain, as well as the content of and caveats thereto, may require more bite than positive morality. [ABSTRACT FROM AUTHOR]

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions. The bottom line is this: Time served is not a panacea. To the contrary, it contributes to criminal justice pathologies. This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted. The analysis reveals that crediting time served is a destructive practice on egalitarian, economic, expressive, and retributive grounds. Time served should be abandoned. This Article then begins the discussion of what should replace time served, suggesting the possibility that detainees should be financially compensated instead. Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants—both the innocent and the guilty—and can lead to positive reforms. Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane. [ABSTRACT FROM AUTHOR]

The article proposes criminal law reforms on conspiracy, complicity and contemplated crime in the U.S. It explores the mental state requirements for and the scope of intentions in conspiracy and complicity. It suggests the revision of the core of accomplice liability and the natural and probable consequences doctrine. Also explained is the implication of the tendency of the state of the law to punish negligent actors disproportionately to their culpability in an effort to capture the culpable.

There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari's behavior on a date. Whereas some commentators condemned Ansari's behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent. This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the involuntariness of the consenter's choice. To deny the latter is not to deny the former. Because these are two disparate functions, much of the debate about Ansari may be commentators talking past each other. After explaining this miscommunication, this Article broadens our understanding of how the blameworthiness of the coercer can bear on the permissibility of his actions. Just as no man may profit from his own wrong, coercers may not avail themselves of consent, even if it is sufficiently "freely given" such that the consenter is not acting involuntarily. This Article claims that the wrongful coercion "normatively impairs" the coercer, and that this normative impairment is at play in other legal doctrines. With the normative grounding in place, this Article considers how and if these amendments to our view of coercion should be taken into account in the law, with a specific focus on sexual offenses. It offers a draft statute for discussion purposes, considers charges of paternalism in both the public and private sphere, and points to other reasons to be cautious about criminalization. Finally, this Article defends this view as a more perspicuous account of the normative landscape than other coercion theories. Ultimately, the goal of this Article is to define new conceptual territory for normative debate. Progress cannot be made until we ask the right questions and answer the same ones. This Article aims to provide the framework within which more nuanced discussions can be had. [ABSTRACT FROM AUTHOR]