Table of Contents

i. Principles Chapter 1. Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law Meir Dan-Cohen Comments: Kyron Huigens-Duress Is Never a Conduct Rule Samuel W. Buell-Decision Rule as Notice: The Case of Fraud Anne M. Coughlin-Of Decision Rules and Conduct Rules, or Doing the Police in Different Voices Luís Duarte d'Almeida-Separation, But Not of Rules Adil Ahmad Haque-The Constitutive Function of Criminal Law Eric J. Miller-Are There Two Types of Decision Rule? Malcolm Thorburn-A Liberal Criminal Law Cannot Be Reduced to These Two Types of Rules Reply: Meir Dan-Cohen Chapter 2. Empirical Desert Paul H. Robinson Comments: Mary Sigler-The False Promise of Empirical Desert Adam J. Kolber-Compliance-Promoting Intuitions Michael T. Cahill-A Fertile Desert? Alice Ristroph-The New Desert Youngjae Lee-Keeping Desert Honest Matthew Lister-Desert: Empirical, Not Metaphysical Alice Ristroph-Response to Lee and Lister Joseph E. Kennedy-Empirical Desert and the Endpoints of Punishment Andrew E. Taslitz-Empirical Desert: The Yin and Yang of Criminal Justice Adil Ahmad Haque-Legitimacy as Strategy Laura I. Appleman-Sentencing, Empirical Desert, and Restorative Justice Reply: Paul H. Robinson Chapter 3. Defending Preventive Detention Christopher Slobogin Comments: Michael Louis Corrado-Slobogin on Dehumanization Michael Marcus-Don't Abandon Sentencing Reform to Defend Preventive Detention Rinat Kitai-Sangero-The Presumption of Innocence versus Preventive Detention Matt Matravers-Unreliability, Innocence, and Preventive Detention Joseph E. Kennedy-The Dangers of Dangerousness as a Basis of Incarceration Reply: Christopher Slobogin Chapter 4. The Economics of Crime Control Doron Teichman Comments: Russell D. Covey-The Limits of the Economic Model: Becker's Crime and Punishment Alon Harel-The Economic Analysis of Crime Control: A Friendly Critique Keith N. Hylton-Effi cient Deterrence and Crime Control Morris B. Hoffman-Law, Economics, and Neuroethical Realism Reply: Doron Teichman Chapter 5. The Difficulties of Deterrence as a Distributive Principle Paul H. Robinson Comments: Russell D. Covey-Deterrence's Complexity Douglas A. Berman-Making Deterrence Work Better Doron Teichman-In Defense of Deterrence Jonathan S. Masur, Richard H. McAdams, and Thomas J. Miles-For General Deterrence Reply: Paul H. Robinson Chapter 6. Why only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions Alon Harel Comments: Miriam Baer-Eliminating the Divide Between the State and Its Citizens Doron Teichman-Why the State May Delegate the Infliction of Criminal Sanctions Malcolm Thorburn-Why Only the State May Decide when Sanctions Are Appropriate Stuart P. Green-Why Do Privately Inflicted Criminal Sanctions Matter? Reply: Alon Harel Chapter 7. Results Don't Matter Larry Alexander and Kimberly Kessler Ferzan Comments: Gerald Leonard-Some Reasons Why Criminal Harms Matter Peter Westen-Why Criminal Harms Matter Thomas Morawetz-Results Don't Matter, But . . . Jeremy Horder-On the Reducibility of Crimes Reply: Larry Alexander and Kimberly Kessler Ferzan Chapter 8. Post-Modern Meditations on Punishment: On the Limits of Reason and the Virtue of Randomization Bernard E. Harcourt Comments: Alice Ristroph-Games Punishers Play Michael M. O'Hear-Chance's Domain Alon Harel-The Lure of Ambivalent Skepticism Ken Levy-Punishment Must Be Justified Or Not at All Reply: Bernard E. Harcourt Chapter 9. Remorse, Apology, and Mercy Jeffrie G. Murphy Comments: Sherry F. Colb-Retaining Remorse Stephanos Bibas-Invasions of Conscience and Faked Apologies Susan Bandes-Evaluation of Remorse Is Here to Stay: We Should Focus on Improving Its Dynamics Lisa Kern Griffin-Insincere and Involuntary Public Apologies Janet Ainsworth-The Social Meaning of Apology Reply: Jeffrie G. Murphy Chapter 10. Interpretive Construction in the Substantive Criminal Law Mark Kelman Comments: Paul Litton-Unexplained, False Assumptions Underlie Kelman's Skepticism John Mikhail-Unconscious Choices in Legal Analysis Margaret Raymond-Interpretive Constructions and the Exercise of Bias Alice Ristroph-Interpretive Construction and Defensive Punishment Theory Reply: Mark Kelman Chapter 11. Criminalization and Sharing Wrongs S.E. Marshall and R.A. Duff Comments: Stuart P. Green-Sharing Wrongs Between Criminal and Civil Sanctions Shlomit Wallerstein-Victim, Beware! On the Dangers of Sharing Wrongs with Society Adil Ahmad Haque-Sharing the Burdens of Justice Matthew Lister-Contractualism and the Sharing of Wrongs Michelle Madden Dempsey-Sharing Reasons for Criminalization? No Thanks . . . Already Got 'Em! Andrew E. Taslitz-Public versus Private Retribution and Delegated Revenge Reply: S.E. Marshall and R.A. Duff Chapter 12. Monstrous Offenders and the Search for Solidarity Through Modern Punishment Joseph E. Kennedy Comments: Marianne Wesson-Domesticated Monsters Janet Ainsworth-"We Have Met the Enemy and He Is Us": Cognitive Bias and Perceptions of Threats Douglas A. Berman-Have Good Intentions Also Fueled the Severity Revolution? Reply: Joseph E. Kennedy ii. Doctrine Chapter 13. Against Negligence Liability Larry Alexander and Kimberly Kessler Ferzan Comments: Leo Zaibert-For Negligence Liability Michelle Madden Dempsey-The Object of Criminal Responsibility Alan Brudner-Is Negligence Blameless? Stephen P. Garvey-Fatally Circular? Not! Andrew E. Taslitz-Cognitive Science and Contextual Negligence Liability Kenneth W. Simons-The Distinction Between Negligence and Recklessness Is Unstable Reply: Larry Alexander and Kimberly Kessler Ferzan Chapter 14. Rape Law Reform Based on Negotiation: Beyond the No and Yes Models Michelle J. Anderson Comments: Andrew E. Taslitz-Self-Deception and Rape Law Reform Kimberly Kessler Ferzan-Sex as Contract Robin Charlow-Negotiating Sex: Would It Work? Sherry F. Colb-Conversation Before Penetration? Marianne Wesson-You Can't Get Away from Consent Reply: Michelle J. Anderson Chapter 15. Provocation: Explaining and Justifying the Defense in Partial Excuse, Loss of Self-Control Terms Joshua Dressler Comments: Susan D. Rozelle-He Had It Coming: Provocation as a Partial Justification Vera Bergelson-Provocation: Not Just a Partial Excuse Marcia Baron-Reframing the Issues: Differing Views of Justification and the Feminist Critique of Provocation Joan H. Krause-Tolerating the Loss of Self-Control Kenneth Simons-Excuse Doctrine Should Eschew Both the Reasonable and the Ordinary Person Stephen P. Garvey-Get Rid of Adequate Provocation! Marianne Wesson-Enforcing Virtue with the Law of Homicide Reply: Joshua Dressler Chapter 16. Objective Versus Subjective Justifi cation: A Case Study in Function and Form in Constructing a System of Criminal Law Theory Paul H. Robinson Comments: Peter Westen-A Platonic Justification for "Unknowing Justification" Shlomit Wallerstein-The Third, Combined, Theory for Justifications Mitchell N. Berman-In Defense of Subjective Justifications John Mikhail-Constraining the Necessity Defense Reply: Paul H. Robinson 361 Chapter 17. Self-Defense and the Psychotic Aggressor George P. Fletcher and Luis E. Chiesa Comments: Boaz Sangero-"Self-Defense and the Psychotic Aggressor": What About Proportionality? John Mikhail-Self-Defense Against Wrongful Attack: The Case of the Psychotic Aggressor Sherry F. Colb-Justifying Homicide Against Innocent Aggressors Without Denying Their Innocence Shlomit Wallerstein-Two Flaws in the Autonomy-Based Justification for Self-Defense Whitley R.P. Kaufman-Problems for the Autonomy Theory of Self-Defense Reply: George P. Fletcher and Luis E. Chiesa Chapter 18. Self-Defense Against Morally Innocent Threats Jeff McMahan Comments: Adil Ahmad Haque-Rights and Liabilities at War Shlomit Wallerstein-Why Causal Responsibility Matters Kimberly Kessler Ferzan-Can't Sue; Can't Kill Whitley R.P. Kaufman-Can "Moral Responsibility" Explain Self-Defense? Victor Tadros-Doubts About the Responsibility Principle Reply: Jeff McMahan Chapter 19. Self- Defense, Imminence, and the Battered Woman Whitley R.P. Kaufman Comments:
Gideon Yaffe-The Real Link Between Imminence and Necessity Marcia Baron-In Defense of the Proxy Thesis Kimberly Kessler Ferzan-The Values and Costs of Imminence Joan H. Krause-Imminence Reconsidered: Are Battered Women Different? Jeremy Horder-The "Imminence" Requirement, Battered Women, and the Authority to Strike Back Reply: Whitley Kaufman Chapter 20. Reasonable Provocation and Self-Defense: Recognizing the Distinction Between Act Reasonableness and Emotion Reasonableness Cynthia Lee Comments: Susan D. Rozelle-Making Waves: Radicalizing Act Reasonableness Carissa Byrne Hessick-Is an Act Reasonableness Inquiry Necessary? Terry A. Maroney-Differentiating Cognitive and Volitional Aspects of Emotion in Self-Defense and Provocation Caroline Forell-Norms, Proportionality, Provocation, and Imperfect Self-Defense Jeremy Horder-Different Ways to Manifest Reasonableness Kenneth W. Simons-Requiring Reasonable Beliefs About Self-Defense Ensures that Acts Conforming to Those Beliefs Are Reasonable Reply: Cynthia Lee Chapter 21. Against Control Tests for Criminal Responsibility Stephen J. Morse Comments: Stephen P. Garvey-The Folk Psychology of Self-Control Michael Louis Corrado-Morse on Control Tests Susan D. Rozelle-Sometimes a Control Test Is Just a Control Test Terry A. Maroney-Why Is a Folk-Psychological Account of Loss of Control Necessary (And What Precisely Is It)? Robert F. Schopp-Cognition, Rationality, and Responsibility Reply: Stephen J. Morse Chapter 22. Abolition of the Insanity Defense Christopher Slobogin Comments: Susan D. Rozelle-No Excuse for You Sherry F. Colb-Not By Cognition Alone Paul Litton-Against Integrationism Matt Matravers-Justifying Defenses Reply: Christopher Slobogin Chapter 23. Entrapment and the "Free Market" for Crime Louis Michael Seidman Comments: Sherry F. Colb-Making Sense of Entrapment Law After the Death of Lochner Miriam Baer-Entrapment and the Quandary of the Undercover Investigation Bruce Hay-An Enforcement Policy Perspective on Entrapment Richard H. McAdams-The Entrapment Defense Defended Reply: Louis Michael Seidman iii. Administration Chapter 24. The Political Economy of Criminal Law and Procedure: The Pessimists' View Richard H. McAdams Comments: Darryl K. Brown-The Enduring Pattern of Broad Criminal Codes and a Path for Structural Change Samuel W. Buell-The Sources of Overbreadth Joseph E. Kennedy-Why Here and Why Now? Bringing History and Sociology to Bear on Punitive Pathology Andrew E. Taslitz-The Political Economy of Prosecutorial Indiscretion Rachel E. Barkow-An Ounce of Prevention: Realistic Treatment for Our Pathological Politics Ronald F. Wright-Prosecutor Elections and Overdepth in Criminal Codes Reply: Richard H. McAdams Chapter 25. Against Jury Nullification Andrew D. Leipold Comments: Richard H. McAdams-Jury Nullification Checks Prosecutorial Power Carol S. Steiker-Sculpting the Shape of Nullification Through Jury Information and Instruction Sherry F. Colb-Jury Nullification and Erroneous Acquittals: Getting the Causation Backwards Josh Bowers-Accuracy and Legitimacy Reply: Andrew D. Leipold Chapter 26. Race-Based Jury Nullification: Black Power in the Criminal Justice System Paul Butler Comments: Lawrence Rosenthal-Confusing Cause and Effect Robin Charlow-The Effect of Race-Based Jury Nullification on Baston LaJuana Davis-The Pernicious Myth of Racial Jury Nullification Sherry F. Colb-Rejecting Racial Jury Nullification Bennett Capers-On Racially Based Jury Nullification Josh Bowers-Grand-Jury Nullification: Black Power in the Charging Decision Reply: Paul Butler Chapter 27. In Support of Restorative Justice Erik Luna Comments: Stephanos Bibas-Restoration, But Also More Justice David Donlinko-Restorative Caveats Margareth Etienne-Restoring Justice Through Individualized Processes Joseph E. Kennedy-Restore to What? Supplementing Restorative Justice Michael M. O'Hear-Dangers of the Big Tent Robert Weisberg-Luna-Inspired Speculations on Restorative Justice Reply: Erik Luna Chapter 28. The Virtues of Offense/Offender Distinctions Douglas A. Berman
Comments:
Richard E. Myers II-From Each According to His Ability Adam J. Kolber-Characteristics Related to Punishment Experience Nancy Gertner-Offense/Offender Distinction and Competence Laura I. Appleman-Splitting the Baby: The Danger of Distinguishing Between Offense and Offender Characteristics Joseph E. Kennedy- Blakely, Booker, Accountability, and Intelligibility Margareth Etienne-In Need of a Theory of Mitigation Reply: Douglas A. Berman Chapter 29. The Heart has its Reasons: Examining the Strange Persistence of the American Death Penalty Susan A. Bandes Comments: Douglas A. Berman and Stephanos Bibas-The Heart Has Its Value: The Death Penalty's Justifi able Persistence Mary Sigler-Emotions, Retributivism and the Death Penalty Jeffrie G. Murphy-When Clearly Understood, Retributive Theory Has Much To Offer Robert F. Schopp-Reason and Emotion in Capital Sentencing Joseph E. Kennedy-Outrage versus Anger and Hatred Carol S. Steiker-Will Empathy Kill the Death Penalty, or Vice Versa? LaJuana Davis-Overriding Emotion Terry A. Maroney-Can the Theory and Practice of Capital Punishment Be More Emotionally Intelligent? Reply: Susan A. Bandes Chapter 30. Mercy's Decline and Administrative Law's Ascendance Rachel E. Barkow Comments: Ronald F. Wright and Marc L. Miller-Subjective and Objective Discretion of Prosecutors Douglas A. Berman-Mercy's Disguise, Prosecutorial Power, and Equality's Modern Construction Stephanos Bibas-Political versus Administrative Justice Andrew E. Taslitz-The Decline of Criminal Law Representative Populism Reply: Rachel E. Barkow Chapter 31. Criminal Law Comes Home Jeannie Suk Comments: Melissa Murray-The Private Life of Criminal Law Laura A. Rosenbury-Whose Privacy? Aya Gruber-From Neoliberalism to Libertarianism: Why Neither Criminalization Nor Privacy Is the Answer for Battered Women Jennifer Collins-Criminal Law Comes Home to a Family Cheryl Hanna-Because Breaking Up Is Hard To Do Emily J. Sack-The Crime of Domestic Violence Deborah Tuerkheimer-Domesticating Criminal Law: A Normative Defense Alafair Burke-Domestic Violence Misdemeanor Prosecutions and the New Policing Reply: Jeannie Suk

About the Author

Paul H. Robinson is Professor of Law at the University of Pennsylvania School of Law and most recently the author of Distributive Principles of Criminal Law (OUP, 2008). Stephen Garvey is Professor of Law at Cornell University School of Law. Kimberly Kessler Ferzan is Professor of Law at Rutgers University School of Law, Camden.

Reviews

"In this volume one can find both the cutting edge theoretical issues on criminal law and the thrusts and parries of the leading thinkers who have engaged those issues. Moreover, not only academics interested in criminal law, but students and practitioners as well, will find this to be a truly valuable resource."
--Larry Alexander
The University of Texas School of Law
"Criminal Law Conversations is a bravura feat of intellectual entrepreneurship by Robinson, Ferzan and Garvey. It is a feast of interchange and provocation. Although I feel a bit sheepish about blurbing the book because I am an included author, the volume is indispensable reading for criminal law scholars."
--Stephen Morse
University of Pennsylvania Law School
"The criminal law allocates huge amounts of public resources with no accountability for the resulting impacts on public well-being. These conversations should be helpful to anyone interested in assessing and, perhaps addressing, this archaic dysfunction."
-- Michael Marcus
Judge, Circuit Court, Multnomah County, Oregon
"I had the honor to follow many of these conversations as they unfolded online. No orthodox collection of essays could have gathered such an extravagantly distinguished list of contributors, nor focused their minds so exactly on each other's concerns, nor included such an extraordinary range of perspectives, nor maintained such uniformly high standards throughout. This is a unique product of collective enterprise, and it provides an unsurpassed guide to
contemporary criminal law scholarship."
--John Gardner
Professor of Jurisprudence, University of Oxford
"Robinson, Garvey & Ferzan invent a brilliantly useful new format for an edited volume. They provide both a wonderful introduction to a comprehensive array of complex topics in criminal law, and also a place where the conversation between authors and commentators sharpens the cutting edge for understanding on those topics."
--Richard McAdams
The University of Chicago Law School