Kahn on Mask Bans As Expressions of Memory Politics in the US

Robert Kahn, University of St. Thomas School of Law (MN), has published Mask Bans As Expressions of Memory Politics in the United States. Here is the abstract.

Mask laws have a lengthy history in the United States, one primarily, but not exclusively tied up with the Ku Klux Klan. They also are an instance of memory politics. In particular, mask bans complicate Nikolay Koposov’s distinction between narrow, self-centered memory politics (society casting itself as a victim), and broad, universalistic memory politics (society recognizing its past crimes). Sometimes, as in the Reconstruction Era, mask bans sent inculpatory or universal messages, albeit weak ones. By the 1920s, the mask bans protected Southern elites and by the 1950s, they partially exculpated the regime of segregation by focusing attention on the Klan as uncouth, cowardly, and unworthy defenders of a “progressive” South still deeply invested in segregation and White supremacy. As such, mask bans show that memory laws are sometimes used as tools of moral distancing, something also on display in recent attempts to anoint Antifa as the new Klan by “unmasking” it.

Download the article from SSRN at the link.

Ortman on When Plea Bargaining Became Normal @WillSOrtman

William Ortman, Wayne State University School of Law, is publishing When Plea Bargaining Became Normal in the Boston University Law Review (Volume 100, 2020). Here is the abstract.

Plea bargaining is the criminal justice system, the Supreme Court tells us, but how did it get to be that way? Existing scholarship tells only part of the story. It demonstrates that plea bargaining emerged in the nineteenth century as a response to (depending on one’s theory) increasing caseloads, expanding trial procedures, or professionalizing law enforcement. But in order for plea bargaining to truly become the criminal justice system, the legal profession would have to accept and internalize it. That was not its first reaction. When legal scholars and reformers in the 1920s discovered that bargaining dominated America’s criminal courts, they quickly denounced it as abusive. By the 1960s, only four decades later, the legal profession had learned to love it. This article investigates the process that made plea bargaining the normal way of doing American criminal justice. The story unfolds in three parts — plea bargaining’s discovery by and frosty reception from the “crime commissions” of the 1920s; its rehabilitation by the Legal Realists in the 1930s; and finally its decisive embrace by scholars and judges in the 1950s and ‘60s. The Realists’ starring role is surprising, as they are not usually recognized for contributing to criminal law or procedure. This article shows that they deserve credit (or plausibly blame) for taking the first major steps towards normalization. The article also pays close attention to an objection to plea bargaining that arrived late — that it depends on coercing defendants to plead guilty. By the time this objection emerged in the 1950s, plea bargaining’s momentum was too strong; legal elites, and, ultimately, the Supreme Court, saw no option but to rationalize it away. Above all, this article reveals that normalized plea bargaining is newer and more historically contingent than it seems.

Download the article from SSRN at the link.

Lieberman and Patrick on Disgust, Morality, and the Law @DebLieberman305

Debra Lieberman, University of Miami, and Carlton Patrick, University of Central Florida, have published Objection: Disgust, Morality, and the Law (Chapter 1) as a Chapter in Objection: Disgust, Morality, and the Law, Oxford University Press, 2018. Here is the abstract.

Why do we consider incest wrong, even when it occurs between consenting adults unable to have children? Why are words that gross us out more likely to be deemed "obscene" and denied the protection of the First Amendment? In a world where a gruesome photograph can decisively influence a jury and homosexual behavior is still condemned by some as "unnatural," it is worth asking: is our legal system really governed by the power of reason? Or do we allow a primitive human emotion, disgust, to guide us in our lawmaking? In Objection, psychologists Debra Lieberman and Carlton Patrick examine disgust and its impact on the legal system to show why the things that we find stomach-turning so often become the things that we render unlawful. Shedding light on the evolutionary and psychological origins of disgust, the authors reveal how ancient human intuitions about what is safe to eat or touch, or who would make an advantageous mate, have become co-opted by moral systems designed to condemn behavior and identify groups of people ripe for marginalization. Over time these moral stances have made their way into legal codes, and disgust has thereby served as the impetus for laws against behaviors almost universally held to be "disgusting" (corpse desecration, bestiality) - and as the implicit justification for more controversial prohibitions (homosexuality, use of pornography). Written with a critical eye on current events, Lieberman and Patrick build a case for a more reasoned approach to lawmaking in a system that often confuses "gross" with "wrong."

Download the chapter from SSRN at the link.

Crosby on the Dean of St. Asaph's Case @_Kevin_Crosby_ @hartpublishing

Kevin Crosby, Newcastle Law School, has published R v Shipley (1784): The Dean of St Asaph's Case in Landmark Cases in Criminal Law (Philip Handler, Henry Mares, and Ian Williams, eds., Hart Publishing, 2017). Here is the abstract.

In 1784, William Shipley, the Dean of St Asaph (and the son of St Asaph’s radical bishop Jonathan Shipley), was prosecuted for republishing a controversial political pamphlet. William Jones, the pamphlet’s author, was surprised to find a prosecution for the publication of an abstract work of political philosophy was even possible; and it may have been this, combined with the fact Jones was respectable enough to have been recently elevated to the colonial Bench, which resulted in the Treasury’s refusal to pay the costs of the prosecution. While an English jury was eventually persuaded to convict Shipley ‘of publishing’ the pamphlet, he was subsequently discharged by the judges of King’s Bench, owing to the fact that under the prevailing doctrine of seditious libel a guilty verdict was understood as a de facto special verdict, leaving legal questions (including whether a particular pamphlet was actually seditious) to a later judicial determination. This case is primarily famous because of the challenge it posed to this established doctrine, highlighting the fact this strange form of verdict was, in Lobban’s words, an ‘unworkable stretching of the law’, and because it ultimately led to the passage in 1792 of legislation condemning the practice as contrary to the common law.

Download the essay from SSRN at the link. Here from the publisher's website is a description of the book's contents.

Criminal cases raise difficult normative and legal questions, and are often a consequence of compelling human drama. In this collection, expert authors place leading cases in criminal law in their historical and legal contexts, highlighting their significance both in the past and for the present. The cases in this volume range from the fifteenth to the twenty-first century. Many of them are well known to modern criminal lawyers and students; others are overlooked landmarks that deserve reconsideration. The essays, often based on extensive and original archival research, range over a wide spectrum of criminal law, covering procedure and doctrine, statute and common law, individual offences and general principles. Together, the essays explore common themes, including the scope of criminal law and criminalisation, the role of the jury, and the causes of change in criminal law.

 

Katz on Family Law as Criminal Law @elizabethdkatz

Elizabeth D. Katz, Stanford Center for Law and History; Harvard University, Department of History, is publishing Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts in the University of Chicago Law Review (2019). Here is the abstract.

This Article challenges core understandings about the family law canon, the growth of probation, and the criminal-civil divide by providing the first history of a formative yet forgotten chapter in the development of specialized family courts and child support enforcement. A central tenet in family law scholarship holds that “family law” and “criminal law” are distinct, except in limited or modern circumstances. Scholars suggest this separation results from and reflects fundamental notions about family privacy and state nonintervention. Relying on extensive historical research, this Article radically revises that account by demonstrating that modern support enforcement is rooted in criminal statutes passed around the turn of the twentieth century. Criminal nonsupport prosecutions introduced novel state intervention in family behaviors, and especially marital finances, by assigning newly minted probation officers to reconcile, investigate, and monitor families. Probation officers, in turn, promoted and staffed specialized criminal nonsupport courts — initially called “domestic relations courts” and later “family courts” — that cities first opened in the 1910s. Beginning in the 1930s, perceived disadvantages of criminal law led legislators to strategically relabel family courts and support enforcement as “civil,” even while retaining procedures, personnel, and powers drawn from the criminal approach. Observers found the ongoing use of criminal-derived oversight methods unremarkable; the half-century in which family law was largely criminal law shifted norms about acceptable and desirable state involvement in family relationships. As the number of civil nonsupport suits surpassed prosecutions under criminal statutes, which all states retained, and divorce jurisdiction moved to family courts, family law and courts increasingly appeared civil, obscuring their criminal heritage and continued criminal-law reinforcement. The criminal origins of family courts and support enforcement hold significant implications for the millions of domestic relations cases filed each year, as well as for other types of litigation that blur boundaries between civil and criminal categories. The “civil” label can bring momentous consequences. In a prominent family-related example, Turner v. Rogers, 564 U.S. 431 (2011), the Supreme Court rejected a father’s claim that he was entitled to a public defender, when facing incarceration for a year for nonpayment of child support, on the basis that his imprisonment was for civil contempt. This Article employs history to demonstrate the superficiality of the Court’s holding and to formulate a sounder analysis for future cases in the child support context and beyond.

Download the article from SSRN at the link.

Howlin on The Trials of Peter Barrett @N_Howlin @ucddublin

Niamh Howlin, Sutherland School of Law, University College Dublin, has published The Trials of Peter Barrett: A Microhistory of Dysfunction in the Irish Criminal Justice System as UCD Working Papers in Law, Criminology, & Socio-Legal Studies Research Paper No. 0218. Here is the abstract.

In 1869 an assassination attempt was made on Captain Thomas Eyre Lambert, a prominent Galway landowner. Lambert was returning home from visiting his brother, Giles, who resided at neighbouring Moor Park. He spotted a man lurking beneath some lime trees near the entrance to his house, Castle Lambert. He was fired at a number of times, and was eventually felled by a shot to the forehead. He staggered to the door of his house, later stating: ‘[w]hen I reached the hall door I knocked violently, my butler opened the door and I fell into his arms.’ He soon sent for his brother. Given a description of the assailant, Giles hastened to the Athenry constabulary station, a mile or two away, and relayed the information to acting constable John Griffith. Sub-constable Edward Hayden was quickly dispatched, in plain-clothes, to take the midnight train to Oranmore, ten miles away, to try to apprehend the suspect. He returned around 5 a.m. the following morning with Peter Barrett in custody. He had spotted Barrett sleeping in his train compartment, and he matched the description provided by Giles Lambert. On being asked a few questions by sub-constable Hayden, his answers were ‘both evasive and contradictory’, and he was arrested. Barrett appeared to match the description given by Lambert: ‘I described the assassin as a man of slight figure dressed in dark clothes sharp features with not much hair on his face darkish complexion’. Furthermore, Lambert said he told his brother that ‘if Peter Barrett was in the country he was the man.’ Lambert, as will be seen, had reason to suspect that Barrett might have had a motive for the assault. Barrett was committed for trial at the next assize in August. On the face of it, it had the appearance of a relatively straightforward case destined for a quick resolution. However, this was not to be. What ensued was three trials, a change of venue to Dublin, allegations of jury intimidation, extensive press coverage around the United Kingdom, enormous expense and, ultimately, an acquittal.

Download the article from SSRN at the link.

Gainford on the Historical Persecution of Women and the Birth of Female Criminality @leedslawschool

Amy Gainford, University of Leeds School of Law, has published Mad, Bad or Sad? The Historical Persecution of Women and the Birth of Female Criminality. Here is the abstract.

Throughout history the notion of the ‘female criminal’ has been something of a taboo, an almost morbid curiosity to male dominated societies. As such through misogynist crusades they have attempted to eradicate the world of any women who did not meet the criteria that society dictates. Women who were outspoken and passionate were condemned. Numerous methods were employed to keep women in their place. From the early persecution of witch-hunts in the 15th-17th century to the medicalization of their melancholy in the Victorian era, women were suppressed. Early criminologists ‘discovered’ the biological elements of female criminality and contemporary Criminal Justice System and the mainstream media perpetuated this image. In doing so the disdain from the general public towards criminal women has grown. Often the combination of public hatred and the media’s macabre portrayal creates something of a modern day witch-hunt against these women. Perhaps this is because events of the past ‘demonstrate’ women behaving badly or because of misogyny so deeply ingrained within out society that we cannot escape it. These beliefs that women are fundamentally, biologically evil have seeped into mainstream societal systems that aim to serve the people but instead persecute an entire sub-section of society.

Download the article from SSRN at the link.

Meyer on Hearing the Constitutional Infirmity of the Modern American Death Penalty in the Bygone Songs of Ozark Folklore @NSULawCollege

Chance Meyer, Nova Southeastern University, Shepard Board College of Law, is publishing Twas the Devil: Hearing the Constitutional Infirmity of the Modern American Death Penalty in the Bygone Songs of Ozark Folklore in volume 87 of the Mississippi Law Journal (2017). Here is the abstract.

In the midcentury Ozark Highlands, folklorist Mary Celestia Parler collected over 4,500 reel-to-reel recordings of hillfolk singing the songs and spinning the tales of their ancestors. The Ozark Folksong Collection was recently digitized in a preservation effort at the University of Arkansas Libraries, providing new access to the deeply rooted folk knowledge of the region. Murder ballads reveal that murderers were consistently portrayed to generations of Ozarkers as inhuman monsters, purely evil, with an inevitable deservingness of the death penalty uncomplicated by complex behavioral drives or moral vagaries. News reports, commentary, rhetoric, and prosecutorial arguments surrounding twenty-first century executions of capital defendants tried in Ozark counties of Missouri, Arkansas, and Oklahoma reflect that Ozarkers still rely on folkloric attributes to understand murderers. As a result, folk knowledge supplants Eighth Amendment principles that require capital sentencing jurors to view defendants as complexly, multidimensionally human and subject to biopsychosocial influences. Because there are regional folk traditions across the country, the folklore-based constitutional infirmity of the modern American death penalty apparent in the Ozarks is sure to occur beyond the hilltops.

The full text is not available for download.

Strange on Pardon and Parole in Prohibition-Era New York

Carolyn Strange, Australian National University, is publishing Pardon and Parole in Prohibition-Era New York: Discretionary Justice in the Administrative State in volume 54 of the Osgoode Hall Law Journal. Here is the abstract.

Historians of early-modern England and British colonies have productively applied Douglas Hay’s germinal study of mercy. In contrast, historians of the U.S. have overlooked the utility of the conceptual tools Hay provided to prise open the mitigation of punishment across time and place. In the decade that followed the First World War, disputes over the proper role of mercy and administrative discretion were as heated as they were in Hanoverian England. In Jazz Age New York, fears of gangsterism, and concern over the apparent laxity of parole regulations put the proponents of Progressive penology on the defensive. To analyse this moment, this essay asks what drove opinion against discretionary justice in the form of the pardon and parole, and traces the conditions that give rise to judgments that discretionary justice was too frequent and injudicious. A new vision of order, fixated on penal certainty, came into sharp focus over the 1920s, when mandatory sentencing statutes were introduced. Yet gubernatorial clemency survived that crisis, and in 1930 parole was professionalized and placed under stricter management. This paper confirms that modernity proved no match for discretionary justice. In its personal and administrative forms, it penetrates penal justice, despite the earnest drive to certainty and the persistent demands to terrorize criminals.

Download the essay from SSRN at the link.

May the Force Be With You (and Don't Bring a Knife To a Blaster Fight) @TheLegalGeeks

@ABAesq notes the 40th anniversary of Star Wars with this discussion from Legal Geeks of whether Han Solo shot first and whether it matters. If you aren't up on the whole "Han shot first" debate, cast your mind back to the cantina scene in Star Wars IV: A New Hope in which Han and Greedo have their little discussion over Han's failure to deliver that cargo. Surely you remember that shootout in the cantina? No? Well, read this recap, and then the Legal Geeks' analysis of Han's killing of Greedo. Is it justified?

More Legal Geeks analysis of other legal issues in Star Wars here.

Yeager on Stuffed Deer and the Grammar of Mistakes

Daniel B.Yeager, California Western School of Law, has published Stuffed Deer and the Grammar of Mistakes. Here is the abstract.

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated nearly 1500 criminal cases as on point, 900 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation. Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I hope to decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters. Extant impossibility cases and scholarship take mistakes as a given. But what is a mistake? Is the answer too obvious to mention? Within the stock hypotheticals of impossible attempts, a man shoots a tree stump or a corpse, each mistaken for a live person, or administers a live person an innocuous substance mistaken for poison. These stick-figure hypotheticals pose whether attempted murder has occurred. But because it is stipulated that each action owes to mistake, we are told so little about what happened that of course the question is hard to answer. Any chance of making sense of the hypotheticals is stymied by an absence both of facts and any concern for what can count as a mistake. My contribution here to the considerable work of others is therefore to locate the impossibility defense within an actual context of human action and concern.

Download the article from SSRN at the link.

First International Conference on Modern Slavery and Human Trafficking, February 8-10, 2017, St. Mary's University, London

Centre for the Study of Modern Slavery International Conference

Wednesday 8th February 2017

First International Conference on Modern Slavery and Human Trafficking

Where: St Mary’s University, Twickenham, London
When: Wednesday 8th – Friday 10th February 2017
With the aim of using research to fill the knowledge and evidence gaps experienced by policymakers and practitioners, the conference will provide a space to promote debate and encourage collaboration on addressing the subject of human trafficking and modern slavery, with contributions from UK and international experts. Discussions between policymakers, practitioners and researchers will identify evidence gaps and tailor research to these needs.
Wednesday afternoon will begin with the official launch of the Centre by a Senior Cabinet member, followed by a high-level panel that discusses the current state of the response to modern slavery, both in the UK and globally, with a view to how we move forward.
On Thursday morning, we begin with a scene setting panel, where different government departments will outline their priorities and key evidence gaps. The subsequent panels will then focus on where research is going and identify areas for further examination.
Panels focus on:

• Victim identification and care
• Targeting perpetrators
• Partnership approaches
• Definitional challenges
• Corporate responsibility
• Labour exploitation

The Home Office Modern Slavery Research team will also host a workshop with Chief Scientific Adviser Professor Bernard Silverman to discuss improving the evidence base on modern slavery offenders

Speakers

• Mr Kevin Hyland, Independent Anti-Slavery Commissioner for the UK
• Caroline Haughey, Barrister, Independent Review of the Modern Slavery Act, 2016
• Professor Bernard Silverman, Chief Scientific Adviser, Home Office
• Kate Roberts, Human Trafficking Foundation
• Professor Kokunre Agbontaen-Eghafona, University of Benin, Nigeria
• James Cockayne, United Nations University
• Monique Villa, Thompson Reuters Foundation
• Mick Clarke, Chief Executive, The Passage, London

Download the full agenda (PDF)
Tickets for the conference can be booked online. For further information please contact sasha.jesperson@stmarys.ac.uk.

Al-Alosi on Young People as Creators of Sexually Explicit Online Fan Fiction and the Australian Legal Regime

Hadell Al-Alosi, University of New South Wales, Faculty of Law, has published Young People as Creators of Sexually Explicit Online Material: Fan Fiction and the Law in Australia as UNSW Law Research Paper No. 2015-74. Here is the abstract.

Debate concerning the role of traditional media in the sexualization of young people tends to view young people as a special group of consumers who require protection from some media content and its potential risks. However, with the advent of new media technologies, young people are no longer passive consumers of sexualized representations, but also generators of sexually explicit material that is created and shared among their peers. This challenge has raised concern among those adults who remain ambivalent, or perhaps in denial, about the possibility that young people are sexually curious. Accordingly, this essay seeks to challenge the view that young people are simply passive recipients of sexual messages in the media by highlighting the role that young people play as producers of media content, in particular through the production of fan fiction. This essay investigates the potential criminalization of young people whose online communications about sex can be classified as criminal acts under Australia’s child abuse material legislation. Interviews were conducted with five members of the judiciary to ascertain how this kind of communication might be viewed in a court of law. This was conducted as part of larger research project that seeks to analyze how Australia’s child abuse material legislation may impact on the sexual self-expression of young people themselves.

Download the essay from SSRN at the link.

True Crime Series and the "CSI Effect"

Kenny Herzog for Slate (via Vulture) on the "CSI" effects of Making a Murderer and other true crime series. He notes that many experts are doubtful that such series will have much impact on juror thinking.

When it comes to Serial, The Jinx, or Making a Murderer, it’s more likely they merely confirmed viewers’ skeptical tendencies rather than awakened them. After all, jurors—like all people—are encoded with a lifetime of stimuli that have shaped their worldview, minimizing the likelihood that recently ingested media would directly radicalize their biases. So by the time a trial’s commenced, even the most cynical juries will likely allow a measure of deference to the ensuing process.

Interesting reading.

Hallevy on Criminalization of Oppresion Against Women in the Name of Culture

Gabriel Hallevy, Ono Academic College, Faculty of Law, has published Culture Offenses Instead of Cultural Defense – Criminalization of Oppression Against Women in the Name of Culture. Here is the abstract.

About five thousand women are murdered by their families each year in the name of family honor. These crimes are committed in both advanced western countries and countries of origin. Honor killings are not the only offenses committed against women in the name of culture. When the perpetrators are charged in court, they frequently claim the “ignorance of law” defense, since they have been behaving that way for generations, and why would the legal situation be different in their new homeland. In most cases, this claim is rejected, but it is used to mitigate punishments down to ridiculous sentences. Most western countries share this problem. This chapter argues that the mistake of law defense is irrelevant in relation to culture-based crimes against women.

Download the article from SSRN at the link.

Levy and Cohen on Mental Illness, Dangerousness, and Involuntary Civil Commitment

Ken Levy, Louisiana State University Law Center, and Alex S. Cohen, Louisiana State University, have published Commentary on Szmukler: Mental Illness, Dangerousness, and Involuntary Civil Commitment in Philosophy and Psychiatry: Problems, Intersections, and New Perspectives 147(Daniel D. Moseley and Gary J. Gala: Routledge, 2016). Here is the abstract.

Prof. Cohen and I answer six questions: (1) Why do we lock people up? (2) How can involuntary civil commitment be reconciled with people's constitutional right to liberty? (3) Why don't we treat homicide as a public health threat? (4) What is the difference between legal and medical approaches to mental illness? (5) Why is mental illness required for involuntary commitment? (6) Where are we in our efforts to understand the causes of mental illness?

Download the essay from SSRN at the link.

Gordon on the History of International Criminal Law and War Crimes at the Beginning of the Twentieth Century

Gregory S. Gordon, The Chinese University of Hong Kong, Faculty of Law, has published International Criminal Law's 'Oriental Pre-Birth': The 1894-1900 Trials of the Siamese, Ottomans and Chinese in 4 Historical Origins of International Criminal Law 119 (M. Bergsmo et. al., TOAEP, 2015). Here is the abstract.

Conventional wisdom often traces the origins of international criminal law (ICL) to the 1474 prosecution for atrocities in Alsace of Burgundian governor Peter von Hagenbach and then straight to the Nuremberg and Tokyo trials post-World War II. But this paper demonstrates that history has ignored a remarkable decade at the end of the nineteenth century when three international criminal proceedings with links to the Orient took place: (1) in 1894, a French-Siamese mixed court sat in judgment of Phra Yot, a Siamese governor charged with the death of a French military commander; (2) in 1898, an International Military Commission of four European powers prosecuted versions of war crimes and crimes against humanity arising from Muslim-Christian inter-communal violence on the Ottoman-controlled island of Crete; and (3) in 1900, another international criminal tribunal, this one also consisting of four European powers, presided over the trial of participants in the Boxer Rebellion for proto-crimes against humanity. The paper describes the origins of these three "Oriental" tribunals, including an overview of the noble, and at turns, cynical rationales that inspired the Great Powers to turn to adjudication efforts and international processes. ICL scholarship has examined the trials separately but never together, within their broader historical context. Doing so reveals that they took place during an odd confluence of European colonialism's apogee and the international peace movement's founding. This fascinating period features the erosion of the Congress of Vienna framework, Industrial Revolution demand for overseas cheap labor, raw materials, and new markets, and nascent efforts at establishing transnational arbitral institutions. While Africa was carved up among the European powers at the 1884 Berlin Conference, there was no such orderly division of territory in the Orient. The paper posits that the featured trials are the product of peace movement arbitral impulses in coping with outbursts of violence and resulting tensions among the Europeans competing for imperial possessions in the context of that violence -- without a Berlin Conference-style regional master plan. The trials anticipated many important ICL developments, including proto-formulations of war crimes and crimes against humanity and the establishment of ad hoc and hybrid tribunals. But, sadly, they did not pave the way for Allied use of ICL to achieve justice in the imminent wake of World War I. At that point in history, the Europeans were ready to sit in judgment of their imperial subjects but not of themselves. Thus, these remarkable ICL efforts seem more a subliminal outgrowth of the era's Zeitgeist than a needed groundwork for post-Versailles justice. Still, when viewed holistically and contextually, these late-nineteenth century inquests supply an important missing link between the Hagenbach trial and the proper advent of ICL in the twentieth century.

Download the essay from SSRN at the link.

Imagining Criminal Responsibility In Nineteenth Century Scottish Law

Chloe Kennedy, University of Edinburgh School of Law, is published 'Ungovernable Feelings and Passions': Common Sense Philosophy and Mental State Defences in Nineteenth Century Scotland in volume 20 of the the Edinburgh Law Review (2016). Here is the abstract.

During the nineteenth century, changing conceptions of mental disorder had profound implications for the way that criminal responsibility was conceived. As medical writers and practitioners increasingly drew attention to the complexities of insanity, the grounds on which mentally abnormal offenders could be excused began to seem unduly restrictive. By way of a contribution to our understanding of this development, this article examines how the growing disparity unfolded in Scotland. I argue that the requirements of the insanity defence, as set out within judicial directions, reflect core facets of Scottish Common Sense philosophical thought, including Thomas Reid’s view of human agency and understanding of ‘common sense’. Building on this contention, I suggest that Scottish Common Sense philosophy played an important role in the development of Scottish mental state defences more broadly, and can provide an original interpretation of the way the doctrines of provocation and diminished responsibility changed during this era.

Download the article from SSRN at the link.

Criminalizaing Hate In a Democracy

R. A. Duff, University of Minnesota School of Law & University of Stirling Department of Philosophy, and S. E. Marshall, University of Stirling, are publishing Criminalizing Hate? in Hate, Politics, Law (T. Brudholm & B. Schepelern Johansen, eds.; Oxford University Press, --) (Forthcoming). Here is the abstract.

This paper explores the role that criminal law might play in combating ‘hatred’, in particular whether and why we might appropriately criminalize ‘hatred’. In s. 1 it sketches some salient features of a liberal, democratic republic (as the kind of polity in which we can aspire to live, and whose citizens can be expected to be committed to combating ‘hatred’). In ss. 2-3, we then explain why a certain kind of ‘hatred’ should concern members of such a polity, as a distinctive civic vice manifested in a distinctive kind of civic wrong. In ss. 4-5, we discuss the limited but significant role that criminal law can play, in principle, in responding to such hatred. Finally, in s. 6, we say a little about the difficulties involved in turning ‘in principle’ into ‘in practice’, particularly those concerning offence definitions.

Download the essay from SSRN at the link.

The Turner Rebellion and the Hegelian Dialectic

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has published The Work of Death: Massacre and Retribution in Southampton County, Virginia, August 1831, as UC Berkeley Public Law Research Paper No. 2639785. Here is the abstract.

What does it mean, particularly to a slave, to describe dealing death as “work?” This essay employs G.W.F. Hegel’s famous lordship/bondage dialectic (from The Phenomenology of Mind) to explore the massacre of 55 members of white slaveholding families that took place on Monday August 22nd 1831 in St. Luke’s Parish, Southampton County, Virginia, now known as “The Turner Rebellion.” I argue that certain specificities of the Hegelian dialectic, notably the centrality of work to the bondsman’s “direct apprehension” of its self as independent, are key components of the massacre. Likewise, I argue that the dialectic helps us understand the specifically juridical form of retributive killing that followed the massacre, in which 18 slaves, variously accused of “feloniously counselling, advising and conspiring with each other and divers other slaves to rebel and make insurrection and making insurrection and taking the lives of divers free white persons of the Commonwealth” were executed. The essay also explores the sociology and social anthropology of the killing that was the focal point of the rebellion. It considers whether this killing was incidental to some other purpose, such as revenge, or revolution, or central and essential to what Nat Turner desired to achieve.

Download the article from SSRN at the link.