Yes to Nondiscrimination, No to New Forms of Criminal Liability: A Response to Collins, Leib, and Markel

15 Pages Posted: 3 Sep 2008

Date Written: August 29, 2008


This Essay responds to a new article by Jennifer Collins, Ethan Leib, and Dan Markel, Punishing Family Status, 89 B.U. L. Rev. _ (2008). Among other things, Collins et al. offer a new normative framework for determining when and how the criminal law may appropriately be used to promote voluntary care-giving relationships. This Essay argues that their framework is misconceived in two respects. First, voluntariness does not offer a persuasive foundation for criminal enforcement of care-giving responsibilities. The voluntary assumption of responsibilities later neglected has not generally been regarded as either necessary or sufficient as a basis for criminal liability, and the type of voluntariness upon which Collins and her coauthors rely actually provides little support for the possible expansion of criminal liability contemplated by their framework. Second, criminal law is generally a poor device for promoting changes in private behavior and raising the status of traditionally marginalized groups (a central aim of Collins and her coauthors). Indeed, in light of the vast gap between the scope of the criminal law and the resources available to police and prosecutors, changes in formal law may prove counterproductive with respect to the normative ends that Collins et al. seek to achieve.

A draft of Punishing Family Status can be found at:

A draft of the reply to this response essay can be found at:

Keywords: criminal law

JEL Classification: K14, K42

Suggested Citation

O'Hear, Michael M., Yes to Nondiscrimination, No to New Forms of Criminal Liability: A Response to Collins, Leib, and Markel (August 29, 2008). Boston University Law Review, Vol. 89, 2008, Marquette Law School Legal Studies Paper No. 08-19, Available at SSRN:

Michael M. O'Hear (Contact Author)

Marquette University - Law School ( email )

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P.O. Box 1881
Milwaukee, WI 53201
United States
414-288-3587 (Phone)
414-288-5914 (Fax)

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