'Everyone Does it to Everyone': An Epidemic of Bullying and the Legislation of Transgression in American Schools

Abstract

This article scrutinizes the emergence and transformation of bullying as a novel form of legally cognizable transgression in twenty-first century America with the goal of highlighting an incipient shift away from the logic of individual action and intent that dominated twentieth-century criminological thinking. Through a survey of bullying definitions employed in various state statutes and an intensive examination of the genealogy of a seminal 2010 Massachusetts law, the article explores the shifting relationship between competing modes of carving out a determinate legal offense from the formerly colloquial concept of bullying. Specifically, it demonstrates that bullying legislation may be divided into laws focused on the culpability of individual offenders and those structured around broader, but less personal, social and institutional conditions. Massachusetts’ antibullying legislation in turn serves as an illustration of a broad trend marking the ascendency of this second, depersonalized, mode of defining transgression. The article concludes by considering the larger implications for criminal law of this new legislative attitude, which displaces the subjective individual as the central figure of morally salient transgression and legal intervention.

Keywords: bullying, criminology, youth, discipline, youth violence, education, mens rea, legislation, epidemic