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  1.  9
    Proportionality and Its Discontents.Vincent Chiao - 2022 - Law and Philosophy 41 (2):193-217.
    In this paper, I defend a deflationary account of proportionality, which suggests that proportionality does not explain anything valuable about a system of punishment. Proportionality, rather, is a conventional means for presenting judgments about whether punishment fits the crime. A system of punishment is proportionate to the degree that it coheres with widely shared norms about punishment. There are many reasons such coherence could be valuable, not all of which are retributive. Hence, while on a deflationary view it may be (...)
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  2.  4
    Introduction.Antony Duff & Alec Walen - 2022 - Law and Philosophy 41 (2):167-168.
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  3.  2
    Dissent-Sensitive Permissions.Kimberly Kessler Ferzan - 2022 - Law and Philosophy 41 (2):397-418.
    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. Part I of this paper focuses on convention-type cases, contrasting dates with the intentional touchings that (...)
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  4.  12
    Retributivism and Over-Punishment.Douglas Husak - 2022 - Law and Philosophy 41 (2):169-191.
    Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has brought about mass incarceration in the first place. As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted. The point of this paper is to take steps to (...)
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  5.  1
    Mala Prohibita, the Wrongfulness Constraint, and the Problem of Overcriminalization.Youngjae Lee - 2022 - Law and Philosophy 41 (2):375-396.
    The wrongfulness constraint, as a principle of criminalization, is supposed to preclude criminalization in the absence of wrongfulness. Crimes that look especially problematic from the perspective of the wrongfulness constraint are mala prohibita offenses. The aim of this Essay is to consider the question whether the wrongfulness constraint can serve as an effective tool to curb overcriminalization by looking at the case of mala prohibita offenses. This Essay defends the following propositions. First, because of the availability of an array of (...)
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  6.  4
    A Consequentialist Framework for Prevention.Sandra G. Mayson - 2022 - Law and Philosophy 41 (2):219-241.
    Douglas Husak contends that both criminalization and punishment can serve preventive goals, so long as they respect retributive culpability constraints. This Essay draws on Husak’s work to argue that, while Husak is right to defend the legitimacy of criminal law as a preventive endeavor, preventive coercion is also permissible on consequentialist grounds alone, outside the culpability constraints of the criminal law. The Essay presents a unified consequentialist theory of preventive coercion, addresses deontological objections to ‘pure’ preventive detention, and argues that (...)
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  7.  5
    On the State’s Exclusive Right to Punish.Gabriel S. Mendlow - 2022 - Law and Philosophy 41 (2):243-262.
    In a characteristically iconoclastic essay, “Does the State Have a Monopoly to Punish Crime?”, Douglas Husak argues that the state’s moral right to punish crime is all but self-evident while its supposed monopoly on punishment is a fiction. Husak draws this bracing conclusion from a modest, quasi-Lockean premise – that persons and other entities have a right to impose stigmatizing deprivations on those who wrong them. This premise evokes John Locke’s far stronger claim that everyone enjoys a natural right to (...)
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  8.  6
    Criminal Theory and Critical Theory: Husak in the Age of Abolition.Alice Ristroph - 2022 - Law and Philosophy 41 (2):263-282.
    Political theorists imagine a world without government in order to assess the legitimacy of existing states. Some thinkers, such as philosophical anarchists, conclude that in fact no state can be justified. Should theorists of criminal law similarly imagine away the very thing they seek to theorize? Doug Husak has claimed that “the object of criminal theory is to offer suggestions to improve the content of the criminal law … not to abolish it.” But this Essay argues that abolitionist-leaning scholarship reflects (...)
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  9.  2
    Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak.Alexander Sarch - 2022 - Law and Philosophy 41 (2):305-328.
    In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in (...)
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  10.  3
    Accidentally Killing on Purpose: Transferred Malice and Missing Victims.Patrick Tomlin - 2022 - Law and Philosophy 41 (2):329-350.
    Transferred malice, or transferred intent, is the criminal doctrine that states that if D tries to kill A, and accidentally kills B, the intent to kill transfers from A to B, and so D is guilty of murdering B. This is widely viewed as a useful legal fiction. One of the finest essays on this topic was written by our honorand, Douglas N. Husak. Husak views both the potential usefulness of, and his preferred alternative to, transferred malice through the lens (...)
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  11.  4
    Abetting a Crime: A New Approach.M. Beth Valentine - 2022 - Law and Philosophy 41 (2):351-374.
    In “Abetting a Crime,” Husak puzzles over what, exactly, abettors are held liable for. Having dismissed the proposal that derivative liability can ground the imposition of punishment, he then turns to fair labeling concerns to further highlight problems surrounding current Anglo-American complicity laws. The best moral solution, according to Husak, is a drastic but ultimately unworkable revising of our laws. Loosely, he presents a two-horned dilemma: the laws are either insufficiently detailed to respect fair labeling practices or too detailed to (...)
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  12.  1
    On Blame and Punishment: Self-blame, Other-Blame, and Normative Negligence.Alec Douglas Walen - 2022 - Law and Philosophy 41 (2):283-304.
    Punishment should, at least normally, be reserved for blameworthy actions. But to make sense of that claim, we need an account of blame and of why it might license or even call for punishment. Doug Husak, in whose honor this paper is written, rejects quality of will theories of blame as relevant to criminal punishment – what I call ‘criminal blame’. He offers instead a reason-responsive account of blameworthiness, according to which blame applies to wrongful actions chosen by agents who (...)
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  13.  12
    Revisiting the “But Everybody Does That!” Defense.Gideon Yaffe - 2022 - Law and Philosophy 41 (2):419-440.
    It’s not uncommon for people to try to shield themselves from blame or punishment by saying, “But everybody does that!”. This BEDT defense seems more appealing as a defense to some offenses than to others. In a neglected paper, Doug Husak describes various types of crime to which the BEDT ought, he argues, be a defense. This paper extends his work by identifying a category he overlooks. The paper argues that often the BEDT shields from blame and punishment because the (...)
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  14.  4
    Replies to Commentators.John C. P. Goldberg & Benjamin C. Zipursky - 2022 - Law and Philosophy 41 (1):127-166.
    With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone (...)
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  15.  5
    Redress and Reparations for Injurious Wrongs.Erin I. Kelly - 2022 - Law and Philosophy 41 (1):105-125.
    In Recognizing Wrongs, John C. P. Goldberg and Benjamin C. Zipursky develop and defend “civil recourse theory,” according to which torts are injurious wrongs that give rise to a claim of redress. My discussion extends beyond tort law to explore the ethics of reparations for historical injustice, in particular, regarding the case of Black Americans. I begin by relating the notion of wrongdoing that figures prominently in civil recourse theory to morality. Then I explore the idea that the relevant sort (...)
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  16.  4
    The Law of Negligence, Blameworthy Action and the Relationality Thesis: A Dilemma for Goldberg and Zipursky’s Civil Recourse Theory of Tort Law.Veronica Rodriguez-Blanco - 2022 - Law and Philosophy 41 (1):63-82.
    In this paper, I discuss Goldberg and Zipursky’s Recognizing Wrongs and argue that there is a tension between their philosophy of action as applied to the law of negligence and the idea that the directive-based relationality thesis is central and, therefore, the action and conduct of the defendant should not be part of the core explanation of the tort of negligence.
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  17.  2
    Are Tort Remedies ‘Civil Recourse’?Stephen A. Smith - 2022 - Law and Philosophy 41 (1):83-104.
    In this article, I examine John Goldberg and Benjamin Zipursky’s argument, set out in Recognizing Wrongs, that the ‘principle of civil recourse’ explains much of tort law. Specifically, I assess their claim that tort remedies are instances of civil recourse. I argue that while this label fits a variety of damages awards, it does not fit two significant tort remedies: injunctions and damages for pecuniary losses.
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  18.  4
    The Circumstances of Civil Recourse.Rebecca Stone - 2022 - Law and Philosophy 41 (1):39-62.
    What circumstances create the need for an institution that conforms to civil recourse theory? I consider polities that vary in the extent to which they instantiate justice and argue that only a moderately non-ideal polity has a need for such an institution. When a polity gets close to the ideal, the polity needs institutions of corrective justice. When the polity gets very far from the ideal, tort law is at best instrumentally justified. Somewhere in between those two extremes, a civil (...)
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  19. Stability, Autonomy, and the Foundations of Political Liberalism.Anthony Taylor - 2022 - Law and Philosophy:1-28.
    An attractive form of social stability is realized when the members of a well-ordered society give that society’s organizing principles their free and reflective endorsement. However, many political philosophers are skeptical that there is any requirement to show that their principles would engender this kind of stability. This skepticism is at the root of a number of objections to political liberalism, since arguments for political liberalism often appeal to its ability to be stable in this way. The aim of this (...)
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