Faculty Scholarship Digest
On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise. (See Archives)
Joshua Dressler, Provocation: Explaining and Justifying the Defense in Partial Excuse, Loss of Self-Control Terms, in CRIMINAL LAW CONVERSATIONS (Paul H. Robinson et al. eds. Oxford 2009).
This is an innovative book created through a process in which criminal law articles were nominated for inclusion and then voted on via offers to comment open to all English speaking criminal law scholars, with the goal of collecting important debates in the criminal law field in a single volume. The result is 31 chapters, each with a “core text” by the selected author followed by comments from interested scholars and a reply by the original author. Dressler and Moritz Professor Douglas Berman both have “core texts” in the book.
Dressler’s core text, discussing an issue for which his work has long-served as the starting point for discussion, draws on a 1982 article in the Journal of Criminal Law and Criminology and a 2002 article in the Minnesota Law Review. At issue is the many-centuries-old-still-going-strong criminal law doctrine of “provocation” (also known as “heat of passion”) that mitigates homicides from murder to manslaughter. Is the individual who kills under circumstances that led to a loss of self-control that would cause such a loss in some (but almost always not most) people subject to lesser (but still severe) punishment because of partial justification (the victim was partly to blame), partial excuse (the loss of control is somewhat understandable, like insanity — except less so), both, or neither? Dressler has long defended the position of partial excuse and lays out that argument here. He argues that with such a serious offense as homicide, partial excuses are needed to “permit juries to finely tune levels of criminal responsibility on the basis of differential culpability.” As to provocation, he contends that it is wrong “to stigmatize, condemn and punish a person to the extent that we do a murderer simply because that individual only lives up to the standard of the ordinary law-abiding but imperfect person in similar circumstances.”
Some Very Modest Reflections on Excusing Criminal Wrongdoers, 42 TEX. TECH L. REV. 247 (2009).
“Excuse” in the Criminal Law refers to doctrines under which we choose not to condemn or punish someone (because of her excuse), even though she has done something otherwise worthy of such condemnation or punishment. Insanity is a prototype excuse. Joshua has written prominently and done substantial theorizing in this area of criminal law, and in this symposium piece offers reflective insights concerning the evolution of some of the major controversies surrounding excuse.
First among these is whether the law should bother distinguishing defenses of excuse from defenses of justification (in which society, given the choice, would want the person to do the “something” normally worthy of punishment — typical self-defense is an example of a justification defense). Joshua remains with the clear majority of scholars who believe the distinction useful, and in this piece offers some suggestions regarding how legislators can put it to work in penal codes and the benefits of their doing so.
On the question whether the law of excuse is too broad or too narrow, Joshua expresses a shift in perspective from the former camp to the latter; while he does not advocate new excuses (e.g., brainwashing), he believes certain existing ones should be interpreted more broadly and that “partial excuses” should be allowed more frequently, particularly in light of the sentencing discretion that judges have lost over the past twenty years. Joshua traces these views to his conclusion that excusing certain wrongdoers is not a matter of compassion, but instead is compelled by justice. In a final section, the article examines the always controversial insanity defense.
After reviewing the evidence that the debate on the insanity defense, while interesting, is often “much ado about very little,” the article suggests following a test proposed by Judge Bazelon that would essentially ask juries to decide simply whether mental impairment was such that the defendant “cannot justly be held responsible for his act.”
Joshua Dressler, Feminist (or “Feminist”) Reform of Self-Defense Law: Some Critical Reflections, 93 MARQUETTE L. REV. 1475 (2010).
This article is a revised version of the George and Margaret Barrock Lecture on Criminal Law which Joshua delivered at Marquette in April 2010. Before turning to critiques of changes in the law of self-defense that have been advanced by feminist arguments, Joshua begins by noting that the criminal law is a thoroughly male creation with thoroughly male concerns, so that feminism “has enhanced the law by forcing rethink[ing]” and produced valuable and important reforms. The article then turns to self-defense law and, after setting out the general feminist critique (the law developed from male on male violence), addresses two reforms Joshua opposes.
First, over the past decade under so called “Make My Day” laws, many states have abandoned the duty (outside the home) to retreat—when safe retreat is an option—before using deadly force. This same movement has also created a rebuttable presumption inside the home (where there usually is no duty to retreat) that, when someone forcibly enters a dwelling, the occupant has the reasonable belief of threat of great bodily harm necessary to justify the use of deadly force—in short, a presumption that intruders can be shot. The article explains how the National Rifle Association has very successfully advanced such reforms by “the linking of gun ownership with the protection of women against male violence” (quoting an NRA past president). Joshua criticizes these reforms, suggesting the weakening of the retreat rule devalues human life, while also suggesting that feminist rhetoric has, to some degree, been coopted here in a way that many feminists would not support.
The second reform relates to Battered Women’s Syndrome and the feminist effort to allow abused women to use BWS to claim justified self-defense after killing their abusers in “non-confrontational situations,” e.g., when the abuser is sleeping. Joshua, who has written a great deal in this area, argues that some form of “imminence requirement” should be retained in self-defense law, and that the appropriate defense for a BWS claim is duress—a defense that excuses conduct, while still finding it unjustified.
Joshua Dressler, UNDERSTANDING CRIMINAL LAW (5th Ed. 2009).
This book, first published in 1987, is the contemporary bible for criminal law study and the cornerstone for Dressler’s leading status in the field. Though the Preface modestly describes the text as “primarily designed for use by law students,” and it is published in unassuming paperback form, Understanding Criminal Law has emerged as the leading treatise in the field — the “go to” starting point for scholars as well as students, and a source increasingly cited in judicial opinions and pattern jury instructions, in addition to its frequent scholarly citations.
The book’s extraordinary combination of clarity, conciseness, and comprehensiveness are fundamental to such diverse audiences accepting and relying on the work. In addition, more than twenty years in, the book remains current both in its topical treatments and in the scholarly references it provides for each subject addressed. This new edition, conscious of the response earlier editions have received, avoids undue tinkering and focuses on bringing the entire work up to date.
Joshua Dressler (w/George C. Thomas III), CRIMINAL PROCEDURE, PRINCIPLES, POLICIES AND PERSPECTIVES (West 4th ed. 2010).
This is the latest edition of Joshua’s leading criminal procedure casebook, covering both the investigation and adjudication portions of the course. Criminal procedure cases are a constant concern of the United States Supreme Court, so that new and revised materials are a constant in this field, always presenting the challenge of covering necessary history—sans the twists and turns, current doctrine often cannot be understood either for application or critique—and supplying the ever-multiplying rules, without allowing the materials to be come excessively unwieldy. In this latest edition (I’m especially familiar with it because I use the book in my own Criminal Procedure class), Professor Dressler and his co-author have ruthlessly and effectively sustained this balance, a painful task for authors who must face deleting wonderful explanatory material and create equally useful replacements. An impressive achievement, but no rest for the weary: a supplement will no doubt be necessary for next fall, as the Court will issue more bookworthy decisions this term.
Joshua Dressler, UNDERSTANDING CRIMINAL LAW (6TH ED.) (LEXIS/NEXIS 2012).
This bible of criminal law has now educated and assisted generations of law students and law professors. Joshua’s treatment of doctrine and debates, from the common law to contemporary issues, and his compilation of scholarship on each subject, has resulted in not only a universally trusted authoritative source, but also the starting point for the framing of continuing discussions in the field. So, in addition to being the most important pedagogic element to teaching criminal law across the United States, the book garners about 75 citations each year in law journals and is the uncited starting point for countless other pieces of research. Over the years, Joshua has wisely resisted the temptation to tinker with the sublime and been mindful of the virtues of a reasonably thin volume, so each new edition, which adds the latest issues and scholarship, is an artful update of its worthy predecessor.
Joshua Dressler and Alan C. Michaels, UNDERSTANDING CRIMINAL PROCEDURE VOL. I: INVESTIGATION (Lexis/Nexis 5th ed. 2010).
In this latest edition of the first volume of Joshua and Alan’s criminal procedure treatise (Alan joined in the Fourth Edition), they bring the volume up to date with the latest developments in the ever-evolving field of constitutional regulation of criminal investigations. This subject receives constant, evolutionary attention from the Supreme Court like few others, with at least a handful of cases annually dribbling new doctrine onto the elaborate sand castle the Court has built over the last half-century. As a result, clear explanation of doctrine requires regular reframing of issues and restructuring of discussions. In the tradition Joshua established, the new volume also contains citations to the latest scholarship in each of the areas covered. Joshua and Alan hope that students and faculty readers will continue to find the book clear, helpful and accurate. And they are already preparing the supplement for the cases decided since the book went to press.
Joshua Dressler (w/Stephen P. Garvey), CRIMINAL LAW (West 7th ed. 2012).
For this latest edition of the leading casebook in the field, Joshua has taken on a co-author, Professor Stephen Garvey. Professor Garvey has adopted Joshua’s “wise but grammatically poor adage, if it ain’t (too) broke, don’t fix it (too much),” and there was very little “broke” (even a little bit), so those familiar with Joshua’s casebook (now nearing its twentieth birthday) will not be discomfited by this new edition. Professor Garvey puts it well in his comment to the preface “[Y]ou can well imagine my sense of privilege when asked to help continue [the book’s] tradition. Professor Dressler, the consummate scholar, has been a patient mentor and wonderful friend and colleague over the years, as he has been for and to countless others.”
Joshua Dressler, Duress, in Philosophy of Criminal Law (John Deigh and David Dolinko eds.) (Oxford Univ. Press 2011).
In this book chapter, Joshua sets out the law of duress— a criminal defense centered on a claim of being coerced into committing a crime—while offering and defending his own view on the best philosophical justification for the defense and noting where the law follows and departs from that logic. After setting out the common law elements of duress and modern reforms and the extent of their adoption, Joshua canvasses the arguments for duress as justification and duress as excuse, concluding that the “best explanation of duress is that coercion excuses when a person lacks a fair opportunity to act lawfully,”—the choice theory of excuses. From this conclusion, Joshua argues for an expansion of the duress defense beyond the limits of the common law, by allowing the defense for homicide, and beyond even the broader defense provided by the Model Penal Code, by extending it to duress imposed by nonhuman forces. The chapter also sees duress as a plausible, perhaps the most plausible, way to understand the battered woman defense: “a woman who has been beaten and degraded regularly by her partner and who kills him while he is asleep might not be able to claim self-defense (for lack of immanency or immediate necessity) or even lesser-harm necessity but would seemingly have the right to have a jury consider a claim of duress on the ground that the abuser’s prior violence would cause a person of reasonable firmness to act as she did.”
Joshua Dressler & Alan C. Michaels, 2012 SUPPLEMENT TO, UNDERSTANDING CRIMINAL PROCEDURE, VOL. I INVESTIGATIONS (5TH ED.), VOLUME II ADJUDICATION (4TH ED.).
This latest supplement to the Dressler/Michaels treatise brings the two volumes up-to-date through the 2011-12 Supreme Court term. Coverage includes Jones v. United States, in which the Court considered when GPS tracking constitutes a Fourth Amendment “search,” (at least when it is more than “short term”), whether a subsequent adjudication by plea or trial eliminates the prejudice of ineffective assistance of counsel during earlier plea bargaining (it doesn’t), and how the Court’s Crawford rules apply to a DNA report created before any particular suspect was targeted (no constitutional bar to admission of report, but Court’s 4-1-4 decision so splintered that, in the words of Justice Kagan, “what comes out of . . . th[e]se holdings is — to be frank — who knows what”).
Joshua Dressler and Alan C. Michaels, 2009 SUPPLEMENT TO UNDERSTANDING CRIMINAL PROCEDURE (4TH ED.)(Lexis/Nexis).
In this single volume supplement to their two-volume treatise, Dressler and Michaels cover the latest developments in criminal procedure, both at the Supreme Court level and on the scholarly front. Coverage includes Herring v. United States, in which the Court “may very well be announcing an important change in the exclusionary rule” that would constitute a major retrenchment, Safford Unified School District #1 v. Redding, the case involving the “strip search” of a 13-year old girl, in which the Court by an arguably surprising 8-1 margin held the search unconstitutional on the facts of the particular case, and Melendez-Diaz v. Massachusetts, in which the Court held that the Confrontation Clause bars admission under the business records exception to the hearsay rule of a document prepared to establish facts in a criminal proceeding.
Joshua Dressler & Alan C. Michaels, 2011 Supplement to, Understanding Criminal Procedure, Vol. I Investigations (5th ed.), Volume II Adjudication (4th Ed.).
This latest supplement to the Dressler/Michaels treatise brings the two volumes up-to-date through the 2010-11 Supreme Court term. Coverage includes important new cases from the term that expanded the good faith exception to the exclusionary rule (Davis v. United States), opened new avenues for questioning the adequacy of representation in the guilty plea context (Padilla v. Kentucky), and put a new gloss on the Crawford rule, potentially signaling a change in tack from the new course the Court had been charting in deciding the admissibility of hearsay under the Confrontation Clause.
Joshua Dressler & Alan C. Michaels, 2010 SUPPLEMENT TO 2 UNDERSTANDING CRIMINAL PROCEDURE: ADJUDICATION (4th ed. Lexis/Nexis).
This supplement brings the second volume of Joshua and Alan’s treatise up to date (the first volume is in the fifth edition 2010). Important cases from last year’s Supreme Court docket receiving coverage include Padilla v. Kentucky, addressing standards regarding effective assistance of counsel in the guilty plea context, McDonald v. Chicago, the Court’s new incorporation case regarding the 2nd Amendment which failed to produce a majority opinion, and United States v. O’Brien, in which the Court side-stepped reconsideration of the constitutionality of mandatory minimum sentences based on judicial findings. Justices Stevens and Thomas concurred in the result and would have overruled the precedents approving such sentencing schemes, “but the other seven Justices were scrupulously silent on [the precedents’] continued vitality.”
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