Copyright (c) 2009 All rights reserved. http://works.bepress.com/michael_cahill Recent documents in Michael T. Cahill en-us Thu, 02 Jul 2009 09:53:10 PDT 3600 http://works.bepress.com/michael_cahill/15 http://works.bepress.com/michael_cahill/15 Mon, 20 Oct 2008 07:29:44 PDT In addition to requiring subjective culpability, criminal offenses typically involve two objective features: action and harm. In the paradigmatic case, both features are present, but criminal law also allows for liability where either of them is absent. Rules governing omission liability enable punishment where the offender performs no act, while rules defining inchoate crimes (such as attempt) impose liability where the offender causes no harm. In different ways, these two sets of rules establish the minimum threshold of objective conduct -- to use the classic term, the minimum actus reus -- required for criminal liability.The absolute floor for a criminal actus reus, then, would be defined by the intersection of these two sets of rules. The prospect of liability for inchoate omissions, involving no act and no harm, exists at the frontier of the state's authority to criminalize conduct and, whether allowed or rejected, effectively determines the outer boundaries of that authority. Accordingly, inchoate-omission liability raises fundamental issues about the nature and proper scope of criminal law.This article considers those issues, asking whether criminal punishment for harmless inaction is legally possible, empirically observable, or normatively desirable -- and, perhaps surprisingly, answering all three of these questions in the affirmative. However unlikely or dubious the legal math may seem, it turns out that zero action plus zero harm can, does, and should sometimes add up to a crime. Michael T. Cahill Criminal Law and Procedure http://works.bepress.com/michael_cahill/14 http://works.bepress.com/michael_cahill/14 Tue, 23 Sep 2008 11:54:07 PDT Criminalizing arson is both easy and hard. On the substantive merits, the conduct of damaging property by fire uncontroversially warrants criminal sanction. Indeed, punishment for such conduct is overdetermined, as the conduct threatens multiple harms of concern to the criminal law: both damage to property and injury to people. Yet the same multiplicity of harms or threats that makes it easy to criminalize "arson" (in the sense of deciding to proscribe the underlying behavior) also makes it hard to criminalize "arson" (in the sense of formulating the offense(s) that will address that behavior).This article asks whether adopting one or more arson offenses is the best way for criminal law to address the conduct in question, or whether that conduct is more properly conceptualized, criminalized, and punished as multiple distinct offenses.The original publication is available at www.springerlink.com: http://www.springerlink.com/content/140730475v3575mm/ Michael T. Cahill Criminal Law and Procedure http://works.bepress.com/michael_cahill/13 http://works.bepress.com/michael_cahill/13 Tue, 13 Nov 2007 09:43:44 PST This Book Notice discusses Robin West's Caring for Justice, which posits essential differences between male morality (which West describes as the "ethic of justice") and female morality (the "ethic of care") and argues that the law pays insufficient regard to the latter perspective. The Notice finds West's book provocative and often compelling, but also points to some unexplained or ambiguous aspects of the definitions of justice and care, the dynamic between them, and the empirical origins and normative force of the caring ethic. Michael T. Cahill Jurisprudence http://works.bepress.com/michael_cahill/12 http://works.bepress.com/michael_cahill/12 Tue, 13 Nov 2007 09:42:48 PST In this Article we describe a process, based on fiduciary duty principles, for resolving potential conflicts of interest arising in managed care and for addressing the mutual antagonism between physicians and attorneys. One current topic of legal debate is whether courts should analyze managed care issues under the rubric of tort or contract law. Although both tort and contract are, to some extent, necessary components of a legal regime in managed care, they are not sufficient either individually or in tandem to resolve the types of conflicts and disputes presented in managed care.As an alternative, we propose a regime rooted in the concept of fiduciary duty. Fiduciary relationships are particularly important in medical care where the parties are unable to foresee the conditions under which one act produces better results than another, and where the parties lack adequate information to assess the quality of care.The underlying justification for using the fiduciary duty model is that a patient's trust in his or her physician is the foundation of a morally acceptable health care system. Patients expect and trust that physicians have control over the resources needed for their care. Many aspects of this relationship of trust-including methods of balancing social and economic concerns and the aspects of a physician's relationship to the managed care plan that must be disclosed to patients-are subjects of intense dispute. The basic need for trust, though, is incontrovertible. Absent trust, managed care cannot survive.A fiduciary model offers a framework that preserves patient trust while recognizing that changes in the marketplace, including economic incentives to limit the use of health care resources, are unavoidable, at least in the short-term. We conclude with a discussion of law and medicine at the Millennium, focusing on why the fiduciary approach can help resolve the tensions unsettling health care delivery. Peter D. Jacobson Health Care Law and Policy http://works.bepress.com/michael_cahill/11 http://works.bepress.com/michael_cahill/11 Tue, 13 Nov 2007 09:41:54 PST This article argues that a proper interpretation of ERISA places fiduciary duties at the heart of its framework for judicial review, and that Pegram v. Herdrich, 539 U.S. 211 (2000), was therefore wrongly decided. The article also discusses the negative implications of Pegram. Essentially, the Supreme Court missed an opportunity to enable the use of ERISA to resolve managed care's serious allocative tradeoffs using the fiduciary-duty model of the kind the article proposes. Finally the article considers what, if anything, can be done after Pegram to maintain a balanced and significant role for the government, specifically the courts, in overseeing MCOs' decisions. Michael T. Cahill Health Care Law and Policy http://works.bepress.com/michael_cahill/10 http://works.bepress.com/michael_cahill/10 Tue, 13 Nov 2007 09:39:45 PST This commentary raises two issues that, in the author's view, present some of the greatest challenges - as well as opportunities - for modern criminal theory and criminal-code reform. The first issue relates to the allocation of decision-making authority regarding an offender's ultimate punishment. Specifically, while Apprendi, its progeny, and most of the scholarship in this area have discussed the appropriate constitutional rules to govern element-versus-sentencing-factor determinations, more attention must be paid to developing and justifying a normative basis for making such determinations. The second issue relates to when, and how, criminal law imposes liability for more than one offense at a time. Here again, though the law of double jeopardy may provide a constitutional resolution of the issues, exploration of the underlying normative considerations remains surprisingly, and seriously, inadequate.Available for download at http://ssrn.com/abstract=634321 Michael T. Cahill Criminal Law and Procedure http://works.bepress.com/michael_cahill/9 http://works.bepress.com/michael_cahill/9 Tue, 13 Nov 2007 09:38:42 PST In the 1960s and 1970s, states across the country were caught up in a wave of criminal law reform unprecedented in our history. Influenced by the American Law Institute's development of the Model Penal Code, more than two-thirds of the states adopted comprehensive new criminal codes. Since that time, there has been little momentum for further development or refinement of American criminal codes. Worse, the changes of the criminal codes over the past generation have undercut, rather than built on, the useful reforms implemented earlier. The last thirty years have seen a serious and growing degradation of most criminal codes.Part I of this article documents examples of the degradation trend and describes its harmful effects. Part II discusses the current political processes and incentives driving the derogation of criminal law. Part III discusses the structuring of future criminal code reform.Available for download at http://ssrn.com/abstract=784524 Paul H. Robinson Criminal Law and Procedure http://works.bepress.com/michael_cahill/8 http://works.bepress.com/michael_cahill/8 Tue, 13 Nov 2007 09:37:40 PST Discussions of criminal punishment tend to focus on sentencing as the unique moment when punishment is affixed. Yet two punishment decisions are made in the course of establishing a criminal defendant's liability. The first occurs at conviction, where the range of available punishments is narrowed to that defined by the conviction offense's statutory grade. The second occurs at sentencing, when a more refined decision is made as to a punishment within that range. At present, the first punishment decision involves no explicit judgment by the decisionmaker (the jury, in a jury trial) as to what constitutes a proper punishment, even in broad terms. Instead, the jury makes a set of factual findings and votes to convict of an offense, without knowing its grade or the punishment range attaching to that grade. The first cut punishment level determined by the offense's statutory grade is then imposed administratively, by operation of law.This Article argues that the first punishment decision, the one made at conviction, should not be made while blind as to its consequences, as is currently done in jury trials (though, significantly, not in bench trials). The jury should have both a greater, and more explicit, role in assigning punishment - not only (or, perhaps, even at all) by taking on a greater role with respect to the second, sentencing decision, which is the focus of most current attention, but also by wielding more (and more informed) power with respect to the punishment consequences of the initial decision to convict. In short, the Article proposes that we instruct criminal juries not only about the elements of the offenses with which a defendant is charged, but also about the offense grades and overall sentencing ranges that correspond to each of those offenses. Such a reform would acknowledge and affirm the jury's role as a finder of fault, not merely a finder of facts.Available for download at http://ssrn.com/abstract=822481 Michael T. Cahill Criminal Law and Procedure http://works.bepress.com/michael_cahill/7 http://works.bepress.com/michael_cahill/7 Tue, 13 Nov 2007 09:34:41 PST Michael T. Cahill Criminal Law and Procedure http://works.bepress.com/michael_cahill/6 http://works.bepress.com/michael_cahill/6 Tue, 13 Nov 2007 09:33:42 PST This brief response discusses Richard Bierschbach and Alex Stein's article, "Mediating Rules in Criminal Law," 93 Va. L. Rev. 1197 (2007). The response first points to the main article's contributions: it combats the tendency of theoretical work in criminal law to focus on certain criminal justice issues at the expense of others; and, by widening the scope of analysis, it expands the sense of what tools can be used, singly or in combination, to achieve fundamental criminal justice goals. Then the response notes the authors' seemingly ambivalent stance about the normative implications of their analysis. Finally, I raise two questions about the main article's scope and implications. First, might the "mediation" phenomenon occur with other procedural rules as well as with the evidentiary rules Bierschbach and Stein discuss? Second, is "mediation" is a zero-sum game, or might some combinations of substance and procedure be superior to others in advancing both retributive and utilitarian goals? Michael T. Cahill Criminal Law and Procedure