Law & Society Blog

Geoff Manne at Truth on the Market offers the following insightful comment, extending a discussion about the proportionality of Skilling’s sentence compared to sentences meted out in the so-called “war on drugs.”The problem in the drug war context is quite different, at least for me…. The question there, however, is how to do so optimally, given the staggering social costs of over-deterrence; the risk of self-aggrandizing, politically-motivated, error-prone prosecution; and the reality of pretty good, existing agency-cost controls.

“Manufacturing Consent” is a document written by Prof. Chomsky which tries to show that the institution of newsmedia is, and has historically been, beholden to the powers that be. The cornerstone of the book is a “Propaganda Model”, which explains the political slant of mass media according to five filters, all of them fairly sinister: […]

The case of Arizona v. Berger can be summed up in one sentence, taken from the dissenting opinion:In the case before us, Berger was sentenced to 200 years – more than two and one-half lifetimes, from birth to death – for possessing twenty lewd and obscene photographs. The Arizona Supreme Court upheld the sentence, finding that it did not violate the Eights Amendment’s prohibition against cruel and unusual punishment.

I posted a near final draft of my review of Michael Pawlik’s new book Person, Subjekt, B?ºrger on SSRN.

Markus Dirk Dubber of the University at Buffalo Law School has published yet another excellent discussion of modern German criminal law. In Theories of Crime and Punishment in German Criminal Law, he discusses the critical doctrinal importance of “legal goods” (Rechtsg??ter) and the ascend of positive general prevention (positive Generalpr?ßvention),
… which today is the dominant […]

I posted a revised draft of my review article, The Project of Freedom as a Justification for Punishment, on SSRN. I still have time to make edits and I would welcome any comments, preferably by email.

Because the decisionmaker will always have more information about her theory of value than about the other considerations relevant to optimal deterrence, her theory of value will always dominate her analysis. So although it’s thereafter possible for her to reconstruct her conclusions in deterrence terms, those conclusions will in fact be derivative from the decisionmakers’ intuitions about what crimes are more reprehensible than others.

I posted a draft review article of Michael Pawlik’s book Person, Subjekt, B??rger (Person, Subject, Citizen) on SSRN. Here is the abstract:
It is a hallmark of modernity that the protection of individual freedom, however defined, has replaced justice as the primary criterion for the legitimacy of government. Criminal punishment, as one of the most drastic […]

Preventive and retributive theories frame the issue of crime and punishment differently. Certain conduct or states of affairs are labeled a threat, in order to justify protective measures. Framing the state of affairs as the result of a culpable action, however, means disapproval of that action. Our relative freedom in framing or modeling states of […]

Retributive fairness or “benefit and burden” theories of punishment start from the assumption that individuals seek to achieve certain goals and that they generally choose reasonably efficient means to do so. Some goals can be achieved unilaterally, others are pursued more efficiently through cooperation with others. Enter society as a cooperative venture. The participants agree […]