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Monday, September 11, 2006

Research Canons: Criminal Law

Our next subject matter for the research canons project is Criminal Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.  In addition to listing your suggestions, you want to say a little about why the book or article is so important for new scholars.

update:   Embedded is an excellent introductory bibliography for criminal law put together by one of our readers, Patrick O'Donnell

Posted by Matt Bodie on September 11, 2006 at 12:31 AM in Research Canons | Permalink

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Everyone teaching criminal law ought to read some of H.L.A. Hart's papers on punishment in his Essays on Jurisprudence, in particular those spelling out (for the first time, I believe) the distinction between justifying the practice of punishment and specifying a distribution of punishment. (Hart's own view was that the practice of punishment has a utilitarian justification but that the distribution of punishment must [for this very reason] be based on desert in some form.) Without understanding this distinction anything you'll say about the justification for punishment will almost certainly be confused. Others have made the point since then and developed it in interesting ways but Hart made it with particular clarity.

Posted by: Matt | Sep 11, 2006 9:08:16 AM

Let me suggest a few modern classics from the literature in criminal law theory. HLA Hart's Punishment and Responsibility; Jeffrie Murphy & Jean Hampton's Forgiveness and Mercy; Foucault's Discipline and Punish (at least for pomo types); Feinberg's 4 volumes on the moral limits of the criminal law; Michael Moore's Placing Blame (OUP 1997). Beginners might also want to consult Larry Alexander's very good essay on SSRN on philosophy of criminal law.

In terms of a few great "theory" articles over the years: Dan-Cohen's acoustic separation article in HLR; Dan Kahan's 1996 UChLR article on alternative sanctions; Stuntz's 1997 YLJ piece on the relationship between criminal procedure and criminal law.

I leave for another day (I think) the stuff that would be important for criminal procedure.

Posted by: Dan Markel | Sep 11, 2006 9:09:14 AM

Gah! Of course I'd meant to say _Punishment and Responsibility_ and not _Essays on Jurisprudence_ for Hart (both saddly hard to get copies of at decent prices.)

Posted by: Matt | Sep 11, 2006 9:35:00 AM

I agree with all of Dan's and Matt's suggestions. I'd add, I guess, (no order) Fuller's "Morality of Law"; Becker, "Crime and Punishment: An Economic Approach"; George, "Making Men Moral"; and Anscombe, "Modern Moral Philosophy".

Posted by: Rick Garnett | Sep 11, 2006 10:19:23 AM

Bentham, Cases Unmeet for Punishment, in Principles of Morals and Legislation; Kant, The Metaphysics of Morals; Hart, Legal Responsibility and Excuses (in P & R ); John Gardner, The Gist of Excuses; John Gardner, Justification and Reasons.

Posted by: Kyron Huigens | Sep 11, 2006 10:40:24 AM

I'm not entirely sure of what it means for an article or book to be canonical. Does it mean that we think normatively that it's really good and important, or descriptively that everyone in the field is expected to have read it? Are we talking about useful for people who teach in the area, or important for those who are writing scholarship in the area? If we're talking about important for those writing scholarship, doesn't it depend on what kind of scholarship we have in mind? (For example, what is posted above seems mosty important if you write on punishment theory, but that is only one corner of criminal law.)

In any event, if the issue is what is really good and useful for teaching, here are a few ideas:

1) Henry M. Hart, The Aims of Criminal Law, 23 Law. & Contemp. Prob. 401 (1958).

2) Victoria Nourse, Passion's Progress. http://www.yalelawjournal.org/106/106-5ab1.html

3) Herbert Packer, The Limits of the Criminal Santcion.

4) Leo Katz, Bad Acts and Guilty Minds.

Posted by: Orin Kerr | Sep 11, 2006 11:03:19 AM

The purpose of the project is to clue in new folks on those works that everyone in the field has read and refers to in their research. Older works fit the more traditional definitions, but I also think that if everyone in the field is discussing a recent article or book, that would also (for the time being) meet the definition. I would think that, in addition to the philosophical works here, there would be some older as well as recent empirical works that everyone is talking about. For example, would the Sunstein & Vermeule piece, "Is Capital Punishment Morally Required? The Relevance of Life-Life Trade-offs," be an example of a recent "canon" -- namely, everyone in the field is familiar with it and has some opinion on it?

Posted by: Matt Bodie | Sep 11, 2006 12:16:54 PM

Hardly canonical, but I always liked Roy Porter's "A Social History of Madness," especially since so many criminal defendants nowadays have some form of mental illness. "Random Family," by Adrian LeBlanc, is another excellent noncanonical book tracing one family's journey in and out of the prison system. And of course Bob Cover's "Narrative, Violence and the Law."

Posted by: Laura Appleman | Sep 11, 2006 12:21:45 PM

I believe George Fletcher's Rethinking Criminal Law occupies an important position at the interesection of theory and practice, traditional and contemporary scholarship, domestic and international thinking.

Posted by: Tony Dillof | Sep 11, 2006 12:49:14 PM

Here's a few. First, Mark Kelman's Interpretive Construction in the Substantive Criminal Law -- truly a wonderful article.

Also, Dan Kahan's Secret Ambition of Deterrence, Harvard Law review (5 years ago?).

George Fletcher's book Rethinking Criminal Law.

Darryl Brown, Plain Meaning, Practical Reason, and Culpability: toward a Theory of Jury Interpretation of Criminal Statutes, 96 Mich. 1199 (1998)

And I second dan Markel's citation to Meir Dan-Cohen's On Acoustic Separation in the Criminal Law.

Posted by: John | Sep 11, 2006 12:58:31 PM


One of my favorite Criminal law books is Norval Morris' The Bothel Boy (Oxford).

And one should never ignore Glanville Williams' landmark, Criminal Law: the General Part.

I, perhaps, am getting too much into the detail of the criminal law, but if one teaches the Model Penal Code, the Paul Robinson's books, Criminal Law, and on Defenses, and his many law review articles on the MPC are essential reading.

Of course, the commentary to the MCP is also essential.

Posted by: Fred Moss | Sep 11, 2006 6:17:44 PM

Greeting from http://www.undergroundhacks.com/ we love H.L.A. Hart's papers.

Posted by: MERLiN | Dec 23, 2007 12:19:39 AM

Greeting from http://www.undergroundhacks.com/ we love H.L.A. Hart's papers.

Posted by: MERLiN | Dec 23, 2007 12:20:06 AM

Greeting from http://www.undergroundhacks.com/ we love H.L.A. Hart's papers.

Posted by: MERLiN | Dec 23, 2007 12:21:28 AM

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