Criminal Law

Edited by Gustavo Beade (Universidad de Buenos Aires (UBA), Christian-Albrechts-Universität zu Kiel)
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  1. 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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  2. Punishment With and Without the State: Comments on Linda Radzik’s The Ethics of Social Punishment: The Enforcement of Morality in Everyday Life.Leo Zaibert - forthcoming - Criminal Law and Philosophy:1-10.
    Linda Radzick's new book, The Ethics of Social Punishment, contains an important discussion of punishment outside the context of the state. By way of celebrating this fine and welcome book, I try to probe some analytical contours concerning punishment seen from the general perspective on which Radzick and I agree. I suggest altogether abandoning the idea that punishment needs to be inflicted by an authority. Furthermore, I insist on an account of retributivism that resists the usual accusations of barbarism and (...)
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  3. George Duke on Aristotle, Politics, and Nomos: Review of George Duke’s Aristotle and Law: The Politics of Nomos. [REVIEW]Joaquín Reyes - forthcoming - Criminal Law and Philosophy:1-5.
  4. Algorithms and the Individual in Criminal Law – Corrigendum.Renée Jorgensen - forthcoming - Canadian Journal of Philosophy:1-1.
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  5. Non‐Paradigmatic Punishments.Helen Brown Coverdale & Bill Wringe - 2022 - Philosophy Compass 17 (5):e12824.
    Philosophy Compass, Volume 17, Issue 5, May 2022.
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  6. Hate Crimes: The legality and Practicality of Punishing Bias—A Socio-Legal Appraisal.Natalie Alkiviadou - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-13.
    This paper assesses the extent to which enhancing a penalty for hate crimes is a necessity. It conducts its analysis by looking at the theoretical justifications for and against such enhancement and also the impact of hate crimes on their victims, their groups and society, in comparison to non-bias crimes. It recognizes the particularly damaging effect of hate crimes on these three levels but argues that care must be taken to ensure a high threshold framework and a clear vision in (...)
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  7. Dark Mores: Some Comments on Tommie Shelby’s Dark Ghettos: Injustice, Dissent, and Reform.Charles W. Mills - 2022 - Criminal Law and Philosophy 16 (1):29-43.
    Tommie Shelby’s Dark Ghettos: Injustice, Dissent, and Reform is a major contribution to black political thought and the theorization of racial justice more generally. In these brief comments, I begin by situating Shelby’s work both in the Anglo-American political tradition and the Afro-modern political tradition. While praising the accomplishment that Shelby’s book represents, I nonetheless go on to point out some obstacles to his project arising from the tensions between these traditions. Using the concept of “dark mores”, I argue that (...)
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  8. Evaluating Wrongness Constraints on Criminalisation.Adam R. Pearce - 2020 - Criminal Law and Philosophy 16 (1):57-76.
    Some claim that criminalisation is morally permissible only when the conduct criminalised is morally wrong. This claim can be disambiguated into at least three principles which differ according to whether, and how, wrongness is dependent on details of the law: the strong constraint, the moderate constraint, and the weak constraint. In this paper I argue that the weak wrongness constraint is preferable to the strong and moderate constraints. That is, we should prefer the view that conduct criminalised must be morally (...)
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  9. Whose Burden to Bear? Privilege, Lawbreaking and Race.Ekow N. Yankah - 2019 - Criminal Law and Philosophy 16 (1):13-28.
    Tommie Shelby’s Dark Ghettos: Injustice, Dissent, and Reform is a powerful indictment of how the basic structure of American institutions fail the seriously disadvantaged. Though motivated by what we collectively owe “ghetto” citizens, when exploring criminal law, Shelby instinctively turns his attention to what duties, if any, the disadvantaged have to obey the criminal law. This paper argues that our persistent focus on the obligations of the disadvantaged is a mistake. Instead, we should examine the duties of the advantaged to (...)
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  10. A Review of Elinor Mason’s Ways to be Blameworthy. [REVIEW]Andreas Brekke Carlsson - 2022 - Criminal Law and Philosophy 16 (1):215-221.
    In this review, I summarize Elinor Mason’s Ways to be Blameworthy and raise some worries concerning three aspects of her book: her account of the knowledge condition on moral responsibility, her notion of blame and its justification as well as Mason’s conception of extended blameworthiness.
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  11. Cross-Victim Defences.Shachar Eldar - 2020 - Criminal Law and Philosophy 16 (1):135-151.
    Common law treats cases of misfire in which the actor has a valid defence in relation to either the intended victim or the victim actually harmed as particular instances of ‘transferred malice’. It is said that just as the actor’s intention is fictitiously ‘transferred’ from the intended victim to the victim harmed so are defences, meaning that any—and only—defences that would have been available to the actor had he harmed the intended victim will be granted to him with regard to (...)
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  12. What is Criminal Rehabilitation?Lisa Forsberg & Thomas Douglas - 2022 - Criminal Law and Philosophy 16 (1):103-126.
    It is often said that the institutions of criminal justice ought or—perhaps more often—ought not to rehabilitate criminal offenders. But the term ‘criminal rehabilitation’ is often used without being explicitly defined, and in ways that are consistent with widely divergent conceptions. In this paper, we present a taxonomy that distinguishes, and explains the relationships between, different conceptions of criminal rehabilitation. Our taxonomy distinguishes conceptions of criminal rehabilitation on the basis of the aims or ends of the putatively rehabilitative measure, and (...)
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  13. The Ethics of Law’s Authority: On Tommie Shelby's, Dark Ghettos: Injustice, Dissent, and Reform.Erin I. Kelly - 2019 - Criminal Law and Philosophy 16 (1):1-12.
    Tommie Shelby argues that social injustice undermines the moral standing states would have, were they just, to condemn criminal wrongdoers. He makes a good argument, but he does not go far enough to reject the blaming function of punishment. Shelby’s argument from “impure dissent,” in particular, helps to demonstrate the limits of blame in criminal justice.
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  14. Review of Alexander Brown and Adriana Sinclair, The Politics of Hate Speech Laws. [REVIEW]Sebastien Bishop - 2022 - Criminal Law and Philosophy 16 (1):223-229.
    This review critically summarises Alexander Brown and Adriana Sinclair’s excellent book, The Politics of Hate Speech Laws. The review proceeds by canvassing the main arguments presented in each of the book’s nine chapters, while also seeking to highlight the book’s overarching themes and ideas. Ultimately it is suggested that the book will be of use to anyone interested in the political and philosophical aspects of the highly vexed issue of hate speech regulation. In particular the review praises the book’s pluralistic, (...)
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  15. Punishment the Easy Way.Christopher Nathan - 2020 - Criminal Law and Philosophy 16 (1):77-102.
    Some argue against coercive preventive measures on the grounds that they amount to cloaked forms of punishment. Others offer a qualified defence of such measures on the grounds that such measures have substantively different goals and purposes from punishment. Focusing on the case of civil preventive injunctions, I clear the ground and provide reasons for a third logical possibility: that coercive preventive measures are relevantly similar to punishment, but this does not itself give us a reason to oppose them. ‘Punishment’ (...)
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  16. The Merits and Limits of Conscience-Based Legal Exemptions.Jocelyn Maclure - 2022 - Criminal Law and Philosophy 16 (1):127-134.
    Exemption claims remain a tangled and divisive moral and legal issue both in academia and in the public sphere. In his book Exemptions: Necessary, Justified, or Misguided?, the constitutional scholar Kent Greenawalt zeros in on the vexed question of whether exemptions from rules of general applicability based on the conscientious convictions of individuals or groups are sometimes justified or prudent by discussing a wide range of cases drawn from the American jurisprudence. Although he does not engage in a significant way (...)
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  17. Dark Times, Black Light: A Reply to Yankah, Kelly, and Mills.Tommie Shelby - 2022 - Criminal Law and Philosophy 16 (1):45-55.
    Replies to symposium commentaries on the book Dark Ghettos: Injustice, Dissent, and Reform.
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  18. Human Security Law in Iraq: Reforming Rules, Practices, and Urban Spaces.Hannibal Travis -
    This article addresses a few moments in the evolution of human security law in Iraq, focusing in particular on the Coalition Provisional Authority, the new Iraqi Constitution, Iraqi High Tribunal (successor to the Iraqi Special Tribunal), and the International Criminal Court. It synthesizes the results of some existing research on ongoing impunity for certain crimes against political candidates, journalists, anti-corruption activists, and ethnic and religious minorities, a situation which may have tainted Iraq’s transition to a more democratic republic, while aggravating (...)
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  19. Christianity and Criminal Law.Mark Hill & Norman Doe - 2020 - Routledge.
    "Produced by the Center for the Study of Law and Religion, Emory University".
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  20. The Legal Philosophy and Influence of Jeremy Bentham: Essays on of the Limits of the Penal Branch of Jurisprudence.Guillaume Tusseau - 2014 - Routledge.
    Gathering together an impressive array of legal scholars from around the world, this book features essays on Jeremy Bentham's major legal theoretical treatise, Of the Limits of the Penal Branch of Jurisprudence, reassessing Bentham's theories of law as well as his impact on jurisprudence. While offering a suggestive picture of contemporary Bentham studies, the book provides a thorough examination of concepts such as legal discourse, legal norms, legal system, and subjective legal positions. The book compares Bentham's approach with other landmark (...)
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  21. Direct and Oblique Intention in the Criminal Law: An Inquiry Into Degrees of Blameworthiness.Itzhak Kugler - 2002 - Routledge.
    The subject of intention in the criminal law is currently causing many debates among criminal lawyers. This compelling and probing volume addresses two key questions: should the criminal law distinguish between direct intention and recklessness, and what should the law be concerning cases of "oblique intention" - i.e. cases in which the actor does not act in order to cause the proscribed result, but is nevertheless practically certain that his, or her, action will cause it?
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  22. ‘But You Could Have Hurt Me!’: Risk and Harm.Joseph Bowen - forthcoming - Law and Philosophy:1-30.
    This paper answers two questions. First, on the assumption that risk of harm is of moral significance, does risk’s moral significance lay in its being harmful? Second, is risk of harm itself harmful? I argue that either risk is not harmful or that risk is harmful only in a small range of cases. If risk is not harmful, and yet risk is of moral significance, risk’s moral significance cannot lie in its being harmful. And if risk is harmful only in (...)
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  23. Should criminal law protect love relation with robots?Kamil Mamak - forthcoming - AI and Society:1-10.
    Whether or not we call a love-like relationship with robots true love, some people may feel and claim that, for them, it is a sufficient substitute for love relationship. The love relationship between humans has a special place in our social life. On the grounds of both morality and law, our significant other can expect special treatment. It is understandable that, precisely because of this kind of relationship, we save our significant other instead of others or will not testify against (...)
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  24. Interpreting and Reframing the Appropriate Adult Safeguard.Roxanna Dehaghani - 2022 - Oxford Journal of Legal Studies 42 (1):187-206.
    The appropriate adult safeguard is an important procedural safeguard that can be implemented to protect vulnerable suspects at the police investigative stage of the criminal process. The safeguard is available for young suspects and adult suspects who are defined as vulnerable, and can be performed by a vast array of individuals. It is intended to protect evidence, enable effective participation and avoid miscarriages of justice. However, the safeguard lacks an underpinning conceptual framework; it is, and can, be interpreted in multiple (...)
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  25. Crimmigration and the ‘Paradox of Exclusion’.Rottem Rosenberg Rubins - 2022 - Oxford Journal of Legal Studies 42 (1):266-297.
    Much scholarship underscores the exclusionary nature of crimmigration, viewing it as a system of social marginalisation designed to prevent integration. This article, conversely, demonstrates crimmigration’s potential to contribute to the partial and symbolic acceptance of migrants. The article argues that crimmigration is characterised by a ‘paradox of exclusion’—a contradictory attempt to exclude undesirable migrants via the field of criminal law, which is designed primarily for citizens. Consequently, crimmigration regimes extend to migrants certain rights associated with membership and provide irregular migrants (...)
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  26. A Criminal Law for Semicitizens.Ivó Coca-Vila & Cristián Irarrázaval - 2022 - Journal of Applied Philosophy 39 (1):56-72.
    Journal of Applied Philosophy, EarlyView.
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  27. Why International Criminal Law Can and Should be Conceived With Supra-Positive Law: The Non-Positivistic Nature of International Criminal Legality.Nuria Pastor Muñoz - forthcoming - Criminal Law and Philosophy:1-26.
    International criminal law is an achievement, but at the same time a challenge to the traditional conception of the principle of legality. International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying ex post facto criminal laws. This approach, the relaxation of the concept of law by including norms whose existence is doubtful, has apparently (...)
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  28. Dual State: Criminal Justice in Venezuela Under the Criminal Law of the Enemy. Analysis of a Reality That Affects Human Rights.Fernando Fernández - 2018 - Apuntes Filosóficos 27 (52):65-108.
    In this essay we explain some of the problems of the Venezuelan criminal justice sub-system and, in general, the criminal law enforcement. That is to say, that which is expressed in the persecutory actions of the investigating authorities and the criminal courts, after having established in Venezuela a Carl Schmitt concept of Dual State with the purpose of eliminating “bourgeois” democracy and implanting the model of so-called Socialism of the XXI Century. In this sense, it is a question of identifying (...)
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  29. Criminal Law Regulations in Information Press Materials.Maria Łoszewska-Ołowska - 2018 - Acta Universitatis Lodziensis. Folia Litteraria Polonica 51 (5):103-118.
    The issue of criminal law is constantly present in the press materials. A crime for the media is news. And it is so when we talk about an act of a specific person and an equally specific, often extremely dramatic situation in which it occurs. Information on applicable regulations is provided primarily in the context of the application of law. For the media, the report of the crime, the trial and the sentence constitute a pretext for taking up issues in (...)
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  30. Against Accomplice Liability.Alex Kaiserman - 2021 - In Oxford Studies in Philosophy of Law. Oxford, UK: pp. 124-155.
    Accomplice liability makes people guilty of crimes they knowingly helped or encouraged others to commit, even if they did not commit the crime themselves. But this method of criminalizing aiders and abettors is fraught with problems. In this chapter, I argue that accomplice liability in the criminal law should be replaced with a system in which agents are criminalized on the basis of their individual contributions to causings of harm—the larger the contribution, the more severe the crime—regardless of whether those (...)
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  31. Alguns Argumentos Contra o Recurso à Figura do Comportamento Lícito Alternativo Como Critério de Imputação Objetiva.Ricardo Tavares da Silva - 2022 - In Vários (ed.), Prof. Doutor Augusto Silva Dias In Memoriam. Lisboa, Portugal: pp. 479-498.
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  32. Core Concepts in Criminal Law and Criminal Justice: Volume 2.Kai Ambos, Antony Duff, Alexander Heinze, Julian Roberts & Thomas Weigend (eds.) - 2022 - Cambridge University Press.
    The trans-jurisdictional discourse on criminal justice is often hampered by mutual misunderstandings. The translation of legal concepts from English into other languages and vice versa is subject to ambiguity and potential error: the same term may assume different meanings in different legal contexts. More importantly, legal systems may choose differing theoretical or policy approaches to resolving the same issues, which sometimes – but not always – lead to similar outcomes. This book is the second volume of a series in which (...)
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  33. Restorative Justice and Criminal Law.Jørn Jacobsen and Linda Gröning (ed.) - 2012
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  34. Beyond the Present-Fault Paradigm: Expanding Mens Rea Definitions in the General Part.J. J. Child & Adrian Hunt - forthcoming - Oxford Journal of Legal Studies.
    This article explores the use of mens rea terms in the criminal general part. We contend the current law fails properly to conceptualise mens rea for a large category of offences, namely bespoke/substantive inchoate offences, attempt, conspiracy, assisting and encouraging, and the general offence of complicity. These offences involve two conduct events: one in the present and one in future. However, current mens rea terms are defined as if applied to the more conventional category of criminal offence which only involves (...)
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  35. The Ethical Legitimization of Criminal Law.Krzysztof Szczucki - 2022 - Lexington Books.
    The book focuses on one fundamental thesis: when creating the norms of criminal law, the legislator should strive for their compatibility with the principle of human dignity while taking into account the ethical legitimacy of criminal law.
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  36. Eliminative Materialism, Neuroscience and the Criminal Law.A. E. Lelling - 1993 - University of Pennsylvania Law Review 141.
  37. Criminal Law Exceptionalism as an Affirmative Ideology, and its Expansionist Discontents.Christoph Burchard - forthcoming - Criminal Law and Philosophy:1-11.
    Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the dark sides of criminal laws in action.
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  38. The Acoustic Separation of the Criminal Law Theorist: Meir Dan-Cohen's Harmful Thoughts.I. Leader-Elliott - 2003 - Australian Journal of Legal Philosophy 28.
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  39. The Wages of Criminal Law Exceptionalism.Alice Ristroph - forthcoming - Criminal Law and Philosophy:1-11.
    In this short essay, I suggest a few specific ways in which criminal law exceptionalism has shaped the theory and practice of criminal law. First, criminal law exceptionalism isolates criminal theory from legal theory more generally, with the result that criminal theorists often miss insights from other legal fields. Relatedly but more broadly, criminal law exceptionalism can make sociology, psychology, history, and political theory invisible or seemingly irrelevant to criminal theory. Together, these two forms of scholarly insularity put criminal theory (...)
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  40. Could We Live Together Without Punishment? On the Exceptional Status of the Criminal Law.Rocio Lorca - forthcoming - Criminal Law and Philosophy:1-10.
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  41. Is Criminal Law ‘Exceptional’?R. A. Duff & S. E. Marshall - forthcoming - Criminal Law and Philosophy:1-10.
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  42. The Remains of Exceptionalism in Criminal Law.Francesco Viganò - forthcoming - Criminal Law and Philosophy:1-11.
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  43. Sexual Crimes and Low Conviction Rates.Lewis D. Ross - 2021 - Public Ethics.
    What should we do about low conviction rates for sexual offences? Much of the discussion focuses on the problem of prosecution: i.e. too few accusations of sexual assault make their way to court. Here, I want to consider the problem from a different angle—namely, what should we do if prosecution rates rise, but conviction rates do not? After all, prosecutions are not an end in themselves. The problem is that too few people who are guilty of sexual assault are being (...)
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  44. It is the Interaction, Not a Specific Feature! A Pluralistic Theory of the Distinctiveness of Criminal Law.Javier Wilenmann - forthcoming - Criminal Law and Philosophy:1-10.
    The paper defends an interactive theory of the distinctiveness of criminal law. It argues that criminal law’s distinctive behavior can be connected to the interaction between five traits: it is an institutional practice administered by a large and special bureaucracy, playing a substantial role in authorizing the use of coercive police force, leading to a harsh sanctioning regime linked, at least in part, with core wrongs and notions of personal responsibility. Although none of these features is exclusive to criminal law, (...)
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  45. On the ‘Specialness’ of the Criminal Law.Matt Matravers - forthcoming - Criminal Law and Philosophy:1-11.
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  46. Criminal Law Exceptionalism: Introduction.Christoph Burchard & Antony Duff - forthcoming - Criminal Law and Philosophy:1-2.
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  47. Algorithms and the Individual in Criminal Law.Renée Jorgensen - forthcoming - Canadian Journal of Philosophy:1-17.
    Law-enforcement agencies are increasingly able to leverage crime statistics to make risk predictions for particular individuals, employing a form of inference some condemn as violating the right to be "treated as an individual". I suggest that the right encodes agents' entitlement to fair distribution of the burdens and benefits of the rule of law. Rather than precluding statistical prediction, it requires that citizens be able to anticipate which variables will be used as predictors, and act intentionally to avoid them. Furthermore, (...)
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  48. Review of Vincent Chiao, Criminal Law in the Age of the Administrative State. [REVIEW]Peter Ramsay - forthcoming - Criminal Law and Philosophy:1-6.
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  49. Redoing Criminal Law: Taking the Deviant Turn.Leo Katz & Alvaro Sandroni - forthcoming - Criminal Law and Philosophy:1-11.
    This is a review of Larry Alexander and Kim Ferzan’s Reflections on Crime and Culpability, a sequel to the authors’ Crime and Culpability. The two books set out a sweeping proposal for reforming our criminal law in ways that are at once commonsensical and mindbogglingly radical. But even if one is not on board with such a radical experiment, simply thinking it through holds many unexpected lessons: startlingly new insights about the current regime and about novel ways of doing legal (...)
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  50. How and Why Should the Criminal Law Punish Corporations?William Robert Thomas - 2015 - Dissertation, University of Michigan
    Courts established over a century ago that a corporation, like an individual, should be held criminally responsible for its misconduct. Nevertheless, the practice still faces steep resistance rooted in skeptical worries about both the possibility of, and the purpose behind, holding collectives accountable. My dissertation refutes both skeptical worries—and, in doing so, brings together diametrically opposed approaches to corporate regulation. Chapter I situates the project in its historical context. Regulation of commercial activity originally occurred through corporate law: states looked inside (...)
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