Copyright (c) 2009 All rights reserved. http://works.bepress.com/vera_bergelson Recent documents in Vera Bergelson en-us Sun, 31 May 2009 12:52:57 PDT 3600 http://works.bepress.com/vera_bergelson/8 http://works.bepress.com/vera_bergelson/8 Tue, 31 Mar 2009 08:24:55 PDT This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and voluntary. In addition, for complete justification, the perpetrator¡¯s reasons for a consensual injurious act should be subjectively benevolent and the act must produce an overall positive balance of harms and evils, including harm to the victim¡¯s welfare interests and dignity. If these requirements are not met, the defense should be only partial. Vera Bergelson Criminal Law and Procedure http://works.bepress.com/vera_bergelson/7 http://works.bepress.com/vera_bergelson/7 Tue, 31 Mar 2009 08:24:54 PDT In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime. I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s offender¡¯s circumstances that makes him less blameworthy for the crime he committed. A court may choose to treat such an offender more leniently but it should not be mandated to do so. Vera Bergelson Criminal Law and Procedure http://works.bepress.com/vera_bergelson/6 http://works.bepress.com/vera_bergelson/6 Tue, 31 Mar 2009 08:24:53 PDT The goal of this article is to rethink the relationship between the concepts of justification and wrongdoing, which play vital roles in the theory of criminal law. Reading George P. Fletcher's new book, The Grammar of Criminal Law, in the context of his earlier scholarship has led me to one major disagreement with Fletcher as well as with the traditional criminal law doctrine: for Fletcher and many others, wrongdoing and justification mutually exclude each other; for me, they do not. Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but then they have a change of heart and offer their victims a deal: if Jack rapes Jill, the criminals will let everyone go. If not, no one's life will be spared. Realizing that this is the only way to save several lives, including Jill's own, Jack reluctantly agrees. Jill, on the other hand, vehemently protests that she would rather die than be violated. When Jack attempts to overpower her, Jill fights back and seriously injures Jack. At that moment, the police arrive and take everyone into custody. It appears that both Jack and Jill have valid defenses of justification - Jack can successfully claim necessity, and Jill can successfully claim self-defense. But is it fair to say that the two are equally right or that neither of them has committed any wrongdoing?Focusing on the problem of incompatible justifications, I suggest that we should revise our understanding of justifications in general. Specifically, I argue that, in certain circumstances, justifiable conduct may be wrongful; that in a conflict between two incompatible justifications, one side may be more right than the other; and that justifications should be viewed not as a homogenous group in which each defense has equal importance but as a hierarchical structure in which the place afforded to a defense is determined by its rationale and effect on the rights of others. The top priority belongs to justifications that do not violate rights of others and, in addition, compel others to behave in a cooperative way (the public duty defenses). The intermediate priority belongs to justifications that neither violate rights of others nor create in others a duty to cooperate (the "special relationship" and autonomy defenses). Finally, the lowest priority belongs to the defense of necessity, which, by design, may involve violation of rights of innocent, unoffending individuals. Vera Bergelson Criminal Law and Procedure http://works.bepress.com/vera_bergelson/5 http://works.bepress.com/vera_bergelson/5 Mon, 30 Oct 2006 14:26:54 PST This article challenges the legal rule according to which the victim's conduct is irrelevant to the determination of the perpetrator's criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed.Part I tests the descriptive accuracy of the proposition that the perpetrator's liability does not depend on the conduct of the victim. Criminological and victimological studies strongly suggest that criminal liability may be properly evaluated only in the context of the victim-perpetrator interaction. Moreover, criminal law itself has a number of doctrines, such as consent, self-defense and (to some degree) provocation, which include victims' actions in the determination of perpetrators' liability.Part II makes a normative claim that victims' actions should reduce or eliminate the perpetrator's liability in all appropriate cases and not merely in the context of a few distinct defenses. This claim draws on:(a) the just desert principle which requires that individuals be punished only for the amount of harm caused by them and not by the victim himself;(b)the efficiency principle, which requires that, in order to preserve the moral authority of criminal law, penal sanctions should not be overused and the law should develop in a dialogue with community perceptions of right and wrong;(c)the consistency principle, which mandates that punishment-justifying considerations be applied systematically;(d)the analysis of mitigating factors recognized at the penalty stage of a criminal trial; and(e)considerations of fairness underlying the comparative liability reform in torts.Part III proposes a basis for a theory of comparative liability in criminal law and suggests a method that makes it possible to distinguish between cases, in which the victim's conduct should provide the perpetrator with a complete or partial defense, and cases, in which the victim's conduct should be legally irrelevant. The author offers a unitary explanation to the defenses of consent, self-defense and provocation. That explanation lies in the principle of conditionality of rights. Pursuant to this principle, the perpetrator's liability should be reduced to the extent the victim, by his own acts, has changed the balance of rights between him and the perpetrator. The victim can do that either voluntarily, by waiving a right not to be harmed, or involuntarily, by forfeiting this right as a result of his unjustified attack on some legally recognized rights of the perpetrator.The article concludes with comparative analysis of factors that may affect the determination of the scope of the perpetrator's liability. These factors include the magnitude of the affected rights of the perpetrator and the victim, the causative impact of their respective conduct, and their personal culpability. Vera Bergelson Criminal Law and Procedure Jurisprudence Law Enforcement and Corrections http://works.bepress.com/vera_bergelson/4 http://works.bepress.com/vera_bergelson/4 Mon, 30 Oct 2006 14:26:53 PST People's right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts--from sadomasochism and cannibalism to experimental medical treatment and mercy killing. Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been criticized for its arbitrary scope, outdated rationales, and potential for moralistic manipulation. Yet, despite those criticisms, no principled alternative has been worked out. This article is an attempt to develop a set of normative requirements for a new rule governing consensual bodily harm and a general defense of consent. The new rule would treat valid (voluntary and rational) consent of the victim as a defense of partial or complete justification. Partial justification is warranted by the mere fact that consensual harm does not involve at least one aspect of a paradigmatic offense, namely a rights violation. The victim was a "co-author" of his own injury and thus the perpetrator should not bear full responsibility for it. Complete justification, on the other hand, would require that, in addition to the victim's consent, the perpetrator had a "good reason" for his harmful action: he intended to achieve a better balance of harms/evils and benefits and, in fact, managed to achieve it. This article rejects the absolute character of today's law. Instead, it promotes a balancing test that takes into account the severity of harm to the victim's interests and dignity as well as the importance of the reasons that caused the harmful act. Vera Bergelson Criminal Law and Procedure http://works.bepress.com/vera_bergelson/3 http://works.bepress.com/vera_bergelson/3 Mon, 30 Oct 2006 14:26:52 PST "It's Personal But Is It Mine? Toward Property Rights in Personal Information" discusses the disturbing erosion of privacy suffered by the American society in recent years due to citizens' loss of control over their personal information. This information, collected and traded by commercial enterprises, receives almost no protection under current law. I argue that, in order to protect privacy, individuals need to secure control over their information by becoming its legal owners. In this article, I confront two fundamental questions that have not been specifically addressed in the privacy literature before: why property is the most appropriate regime for regulating rights in personal information, and why individuals have a stronger moral claim to personal information than its collectors. Recognizing that individual rights may not be absolute, I further propose a way to balance them with rights of collectors and public at large, explore a range of legal and practical implications the new rules may create, and make suggestions regarding the enforcement of information privacy rights. Vera Bergelson General Law http://works.bepress.com/vera_bergelson/2 http://works.bepress.com/vera_bergelson/2 Mon, 30 Oct 2006 14:26:52 PST "It's Personal But Is It Mine? Toward Property Rights in Personal Information" discusses the disturbing erosion of privacy suffered by the American society in recent years due to citizens' loss of control over their personal information. This information, collected and traded by commercial enterprises, receives almost no protection under current law. I argue that, in order to protect privacy, individuals need to secure control over their information by becoming its legal owners. In this article, I confront two fundamental questions that have not been specifically addressed in the privacy literature before: why property is the most appropriate regime for regulating rights in personal information, and why individuals have a stronger moral claim to personal information than its collectors. Recognizing that individual rights may not be absolute, I further propose a way to balance them with rights of collectors and public at large, explore a range of legal and practical implications the new rules may create, and make suggestions regarding the enforcement of information privacy rights. Vera Bergelson Property-Personal and Real http://works.bepress.com/vera_bergelson/1 http://works.bepress.com/vera_bergelson/1 Mon, 30 Oct 2006 14:26:51 PST This article continues to develop an argument in favor of comparative criminal liability started in "Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law," (http://law.bepress.com/rutgersnewarklwps/fp/art19/) Buff. Crim. L. Rev. 385 (2005). The essence of my argument is that people's rights are not static but depend on their actions, and victims may reduce their right not to be harmed either voluntarily, by consent, waiver or assumption of risk, or involuntarily, by an attack on some legally recognized rights of the perpetrator. If that happens, perpetrators should be entitled to a defense of complete or partial justification, which would eliminate or diminish their criminal liability.In this second piece, I respond to the commentaries by Dean Hurd and Professors Harel, Husak and Simons. At the same time I further develop the theory of comparative criminal liability by focusing mainly on three groups of issues:conceptual questions involving the underlying theory of rights; application of the principle of conditionality of rights to particular areas of criminal law (e.g., assumption of risk, contributory negligence, attempts and endangerment, and multiple perpetrators); and practical implementation of the defense of comparative criminal liability. Vera Bergelson Criminal Law and Procedure