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Abstract:
This article examines and critiques the American government's use of discourses of exclusion during times of crisis to legitimate the adoption of measures that target certain groups of people primarily on the basis of their status as members of a particular class. The article consists of four parts.

In Part I, I discuss the political philosophy of various prominent European and American thinkers in order to explain why discourses of exclusion seem to lie at the heart of social contract theories of the State. This might explicate why governments have always been seduced by the idea that it might be legitimate to safeguard the rights of some (the non-excluded) at the expense of the rights of others (the excluded).

The next part briefly recounts several instances in which the government of the United States has placed unfair burdens on some groups of people in order to guarantee the safety of the rest of the population. I focus on four cases, namely: the curtailing of the free speech rights of aliens during the Quasi-War of 1798, the persecution of political dissidents after both world wars, the branding of Japanese Americans as an "enemy race" that needed to be contained in order to avoid another Pearl Harbor, and the recurrent attempt to treat suspected terrorists differently depending on whether or not they are American citizens. This historical inquiry will reveal that the United States government has continuously engaged in the practice of inequitably burdening certain groups of people during times of actual or perceived emergency.

In Part III I attempt to demonstrate that the State cannot legitimate the use of an official discourse of exclusion by pointing to the existence of a state of emergency. Even if one accepts that the government can justifiably impose significant burdens on the population during times of emergency, it does not follow that it can do so in an inequitable manner. Besides the fact that enacting measures that target certain groups of people is constitutionally suspect on various grounds, the benefits of making use of such measures do not outweigh the costs. The short-term profits seem to be offset by the fact that trading their liberties for our wellbeing will render us less safe in the long run. Even though these types of measures might help prevent attacks against our nation in the near future, they may also undermine our legitimacy both here and abroad. Ultimately this has the potential of increasing our vulnerability because it will most likely diminish cooperation from those who will probably be in a better position to furnish us with valuable information about possible attacks against our nation.

Finally, in Part IV, I discuss the potential perils of attempting to inequitably target certain groups during times of emergency by examining and critiquing the recent enactment of a statute that authorizes the construction of a wall along the U.S.-Mexico border. Contrary to what its proponents have suggested, this measure, which asymmetrically requires Mexicans to assume a burden that is not imposed on our neighbors to the north, will likely augment the risks of a future terrorist attack, not reduce them.

enemy race, enemy aliens, aliens, immigration, discrimination, security fence act, 9/11, outsiders, discourse of exclusion

Abstract:
The article examines one of the most difficult cases that any court has ever faced regarding the criminal defense of duress: Prosecutor v. Drazen Erdemovic. There, the International Criminal Tribunal for the Former Yugoslavia (ICTY) refused to allow the soldier Erdemovic to plead duress as a defense to a crime involving the killing of close to 70 Muslim men and children in July of 1995.

The question before the ICTY was a momentous one. Determining whether duress should be a defense to a crime against humanity requires us to delve deeply into the justification/excuse distinction in to order address three foundational problems that cut straight to the heart of criminal law theory: (1) is duress a justification or an excuse? (2) is the common-law rule disallowing duress as a defense to murder sound? and (3) is it proper to condition the availability of the defense on the existence of strict proportionality between the harm caused by the defendant's actions and the harm averted?

In the article I undertake an examination of these problems in four parts. In Part I, I probe the opinions in the Erdemovic case with the purpose of demonstrating that both the majority and the dissent treated the duress defense as if it were a claim of justification. This, however, as it is argued in Part II, is injudicious. Properly understood, duress is an excuse, not a justification. In this part it is also argued that, in light of the nature of the defense, it is unwise to disallow claims of duress when the offense charged is murder.

In Part III, I attempt to show that the arguments in favor of permitting the defendant to claim duress as a defense to the crime charged weaken as the seriousness of the offense increases. This contention, which I call the "seriousness of the offense" thesis, provides us with intuitive support for distinguishing cases in which the defendant pleads duress to a crime involving the killing of one human being from those in which the actor claims coercion as a defense to the killing of dozens or hundreds of persons. While our sensibilities seem to point in the direction of allowing the defense in cases of the former type, they do not appear to support permitting the claim in situations of the latter type.

I find theoretical support for the intuitions upon which the seriousness of the offense thesis is grounded in what I dub the "understandable choice" theory of duress. According to this theory, a coerced actor is properly excused when his decision to engage in wrongful conduct finds sufficient understanding amongst the community to warrant an exemption from liability. In the latter portion of Part III I point out two factors that should be taken into account when making the aforementioned determination, namely: (1) whether the defendant had a legal duty to resist the threats he faced, even if doing so would lead to his death, and (2) if the actor would have avoided harm to the victims by choosing not to capitulate to the coercion.

Finally, in Part IV I apply the understandable choice theory of duress to the facts in the Erdemovic case. After balancing the competing considerations, I conclude that the defendant should have been able to claim duress as a defense to the killing of dozens of civilians. Since the civilians would have died anyway at the hands of other soldiers, resisting the threats would have been useless. Even though this fact does not provide us with sufficient reasons to negate the wrongfulness of the defendant's act (i.e. justify the conduct), it should afford us with enough reasons to exempt him from responsibility (i.e. excuse the defendant).

duress, erdemovic, ICTY, Cassese, criminal law, justification, excuse, demanding heroism, crminal law theory, international criminal law, rome statute, icc

Abstract:
In the article it is argued that, contrary to what prominent animal law scholars such as Gary Francione claim, we have decided to criminalize harm to animals primarily because we are concerned about the wellbeing of such creatures, not because doing so furthers some other human interest. I do so in four parts.

Part I provides a brief historical analysis of animal cruelty laws that will show that, although many of these statutes were originally enacted as a way to protect private property, there has been a marked trend, specially in recent times, to punish animal cruelty regardless, and some-times despite, the property interests involved.

In Part II, the notions of harm, victimhood and consent will be explored in order to lay the groundwork for the claims that will be put forth in the remainder of the article. In light of the issues that animal cruelty statutes raise, particular attention will be paid to discussing John Stuart Mill's and H.L.A. Hart's conception of the harm principle.

Part III examines five different theories that might be advanced in order to explain the interest that we seek to promote by punishing acts that are harmful to animals, namely: (1) protection of property, (2) protection against the infliction of emotional harm to those who have ties to the injured animal, (3) prevention of future harm to humans, (4) enforcement of a moral principle, and (5) protection of the animals themselves.

In Part IV, I will try to explain why it is not necessarily the case, as many animal law scholars have argued, that because animal cruelty statutes allow for the infliction of harm to animals as a result of hunting, scientific and farming activities, the interest primarily sought to be protected by these laws is something other than the protection of animals. This argument is ultimately flawed because it is premised on a misunderstanding of the structure of criminal offenses in general and of anti-cruelty statutes in particular. Properly understood, the existence of privileges that allow people to infringe the prima facie norm against harming animals merely reveals that society (rightly or wrongly) believes that there are countervailing reasons that justify harming the interest sought to be protected by the offense, not that the prohibitory norm was not really designed to protect animals in the first place.

anti cruelty, animal cruelty, animal abuse, animal law, animal law scholars, offense, justification, justification defense, personhood, victimhood, harm principle, harm, regrettable harm, regret, animals as property, animals as persons

Abstract:
The essay provides a broad overview of Spanish criminal law with multiple references to existing caselaw and authorities.

Criminal law, Spain, substantive, procedural

Abstract:
This brief essay, written for the Criminal Law Conversations Project, examines whether one can justifiably kill a faultless, insane assailant to save oneself or another from imminent and serious harm. Although scholars on both sides of the Atlantic agree that the person attacked should not be punished for defending herself from the psychotic aggressor, there is significant disagreement with regards to whether the defensive response should be considered justified or merely excused. Furthermore, amongst those who argue that the appropriate defense in such cases is a justification, there is disagreement regarding whether the specific ground of acquittal should be self-defense or necessity.

These issues are explored in three parts. Part I discusses the facts that give rise to the problem of the psychotic aggressor and summarizes the basic questions posed by the case. Part II surveys and rejects five theories that would lead to acquitting the victim of the attack if he were tried for killing the psychotic aggressor. Part III advances an autonomy-based conception of self-defense that would justify the victim's use of force against the insane assailant and would allow third-party intervention in favor of the defending party. According to this theory, the roots of the right to use defensive force are not in the culpability of the aggressor, but in the wrongful invasion of the autonomy of the defender. Given that the psychotic assailant's attack amounts to an unjustifiable attack on the victim's autonomy, the victim's reciprocal obligation to show consideration for the psychotic aggressor's autonomy weakens. As a result, the law affords him a right to use whatever force is necessary to repel the unlawful attack. The fact that the psychotic actor would be acquitted on grounds of insanity if he were tried for his aggression is beside the point, for excuses such as insanity do not negate the wrongfulness of the act. Our right to be free from unlawful interferences with our person should not be compromised merely because the threat to our autonomy originates in the acts of an inculpable person. In such a confrontation on the street, the aggressor loses the protections that he would get during a trial, that is, the right to plead excuses such as insanity or duress.

self-defense, justification, psychotic aggressor, wrongfulness, excuse, aggression, defensive force, necessity, passive necessity, defensive necessity

Abstract:
This article examines the implications of the Michael Vick case for the criminal law in general and for the law of victimhood in particular. It takes as its point of departure the NFL star's agreement to pay close to one million dollars to the various entities that assumed custody of the pit bulls in order to "make restitution for the full amount of the costs associated with the disposition of all dogs" that were involved in his illegal operation. According to the agreement, the authority to order such payments stems from 18 U.S.C. ý 3663, which allows for the issuance of orders of restitution to victims or other persons harmed by the commission of the offense.

The trial of Michael Vick illustrates how our current criminal laws increasingly treat non-human creatures as "victims," with all of the consequences that this entails, including the possibility to order that restitution be paid to the animals. Some criminal law scholars would argue that this approach is profoundly misguided, given that the criminal law should only aim to safeguard the rights of humans. In this article it will be contended that this position is flawed because it is grounded on an artificial definition of personhood that mistakenly makes humanhood the constitutive feature of personhood. Although there may be good reasons for considering that an entity's humanhood should entitle her to more protection from the legal system than non-human beings, it does not follow that the lack of such a status should preclude access to the protection of the criminal law. The argument will proceed in four parts.

Part I attempts to define the contours of personhood. This is a particularly difficult task, for the meaning of this concept is notoriously ambiguous. Because of the polysemic nature of the term, its discussion frequently invites confusion, particularly in legal circles. It is not always clear whether it is meant to be used as an alternative to "humanhood," as a concept that treats humanhood as a necessary but insufficient condition for personhood, or as a legal term that may encompass beings or entities that are not members of the human race. Ultimately, I will argue that an entity should be considered a person if there are good normative reasons for recognizing that he should be a bearer of rights and obligations, regardless of whether the being is human or not.

Part II takes issue with what will be called the "all or nothing" theory of personhood. According to this theory, a being is either a full fledged person or not a person at all. This conception of personhood is normatively unappealing, for it is plausible, and sometimes desirable, to talk about "partial personhood" alongside with "full-blown personhood." This is what I call the "tiered" theory of personhood, which holds that "personhood" is a concept that admits of degrees and shades of gray. According to this theory, beings should be considered "full-fledged" persons if they should be the bearers of all of the rights and obligations that our legal system has to offer. Contrarily, they should be considered "partial" persons if they should only have the privilege to enjoy some of the rights that our constitutional and statutory provisions confer to persons. The tiered theory of personhood is normatively appealing, for we sometimes have good reasons to legally discriminate between beings on the basis of their different constitutive features.

Part III proposes four different "tiers" or "levels" of personhood. The first tier of personhood is reserved for born humans and animals that are capable of rationality and self-consciousness, such as chimpanzees, orangutans and gorillas. The second tier is comprised of sentient fetuses and non-human animals not falling within the scope of the first tier. The third tier encompasses living non-sentient beings, such as fetuses that do not have the capacity to feel, embryos and trees and plants. Finally, the fourth tier of personhood includes all non-living entities that should be afforded rights in order to further human interests. The chief example of a fourth tier person is a corporation.

Part IV, argues that the fact that certain beings are not born humans should not be an impediment to treating them as victims and as (partial) persons. Since sentient animals and fetuses have the capacity to feel pain, they should have a right to be kept free from the unjustifiable infliction of suffering. If so, it would be sensible to attempt to safeguard such rights by making use of the criminal sanction. Therefore, I will conclude that victimhood depends on second tier personhood rather than humanhood.

Michael Vick, victimhood, criminal law, criminal theory, personhood, humanhood, roe v. wade, fetuses, abortion, sentience, peter singer, restitution, victims

Abstract:
In this article I examine three borderline cases in which it is not clear whether a confession had been obtained in violation of the nemo tenetur principle (i.e. the rights against self-incrimination and forced inculpation). The case of the false confession presents a situation in which a person made a voluntary confession but the overwhelming evidence pointed to the falsity of the statements. In contrast, the confession obtained in the case of the truth serum is of high probative value. However, it could be argued that the suspect did not voluntarily decide to incriminate himself, given that he confessed when he was under the effect of a drug that worked as a truth serum. Lastly, in the case of the unnecessary threat, the police threatened with physically harming the suspect if he refused to confess. The suspect, however, indicated in a judicial hearing that the threat did not influence in any way his decision to confess.

In order to provide solutions for these three borderline cases, I argue that the nemo tenetur principle should be understood as a safeguard against the use of unacceptable methods of police interrogation. The trustworthiness or voluntariness of the statement may be important in other contexts, but they should not definitively determine the admissibility of a confession pursuant to the nemo tenetur principle. Furthermore, taking a cue from Stuart Green’s writings on lying and cheating, I develop a novel framework that will assist in the identification of improper methods of interrogation that should be considered at odds with the rights that are guaranteed pursuant to the nemo tenetur principle. The techniques that should be banned in accordance with this theoretical framework include those that involve the suspect's exploitation by the police, the use of physical or psychological coercion against his person, the use of a certain kind of deception, or the transgression of a mutually agreed upon rule with the purpose of obtaining an undue advantage over the suspect.

After developing this framework, I end by concluding that the statement obtained in the case of the false confession was not secured in a manner incompatible with the suspect's constitutional rights. Despite the questionable trustworthiness of the statement, it cannot be asserted that the police obtained it by employing inappropriate interrogation techniques. I further argue that the confession secured in the case of the truth serum was not obtained in violation of the right against self-incrimination either. Considering that the police had no reason to know that the suspect was under the influence of a drug that reduced his inhibitions, it cannot be argued that they used unacceptable methods of interrogation to obtain the confession. Finally, I contend that the confession secured in the case of the unnecessary threat was obtained in a manner incompatible with the nemo tenetur principle. Despite the fact that the suspect's statement in this case was entirely voluntary and highly trustworthy, the interrogation techniques used by the police to obtain the confession were repugnant. This alone should be enough to justify not admitting the confession into evidence. The difficulty of explaining this conclusion by appealing to the confession's voluntariness or trustworthiness counts as a powerful reason in favor of understanding the nemo tenetur principle as a safeguard against the use of inappropriate methods of interrogation rather than as a mechanism for securing the reliability or voluntariness of confessions.

Self Incrimination, Self-Incrimination, Privilege Against Self-Incrimination, Nemo Tenetur, Coercion, Coerced Confessions, Due Process, Confessions, Interrogation, Miranda, Miranda v. Arizona, Right to Counsel, Sixth Amendment, Voluntariness, Neuroscience, Benjamin Libet, Free Will, Aristotle