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Misunderstanding Provocation

32 Pages Posted: 12 Nov 2009  

Samuel H. Pillsbury

Loyola Law School Los Angeles

Date Written: November 11, 2009

Abstract

This symposium article questions the significance of the partial justification v. excuse distinction often discussed with respect to provocation, noting that the doctrine inevitably has elements of both. It argues that provocation should best be understood as providing mitigation of punishment based on defendant’s good reasons for anger and/or fear rather than according to diminished capacity for rational choice due to the experience of any strong emotion. Finally, if mitigation is provided for diminished rationality due to mental illness, that should occur under a doctrine distinct from provocation.

Suggested Citation

Pillsbury, Samuel H., Misunderstanding Provocation (November 11, 2009). University of Michigan Journal of Law Reform, Vol. 43, p. 143, 2009; Loyola-LA Legal Studies Paper No. 2009-41. Available at SSRN: https://ssrn.com/abstract=1504214

Samuel H. Pillsbury (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1093 (Phone)

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