2021

Clint Bolick State constitutionalism—the practice of state courts deciding cases on independent state constitutional grounds—is a vital yet underdeveloped attribute of American federalism. Our system of dual sovereignty ensures the capacity of state courts to interpret their own constitutions to…

Abby Dockum In the late hours of October 2, 2009, Jonathan Castro staggered drunkenly through Los Angeles, speaking unintelligibly and bumping into passersby. Concerned for his safety, police officers arrested Castro on a misdemeanor public drunkenness charge and transported him…

Ekow N. Yankah In February 2020, Ahmaud Arbery, a twenty-five-year-old Black jogger in Georgia, was chased down by a group of armed, White men in trucks, trapped, shot, and killed. His killers pursued Arbery because they suspected him—with no evidence…

Kenneth W. Simons Under the willful blindness (WB) doctrine widely employed in federal criminal prosecutions, courts extend a statutory “knowledge” or “willfulness” requirement to encompass “willful blindness” or “deliberate indifference.” For example, courts conclude that for drug possession or distribution…

Stephen J. Morse “[E]ven a dog distinguishes between being stumbled over and being kicked.” The thesis of this Article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as…

Erik Luna Many of the modern challenges of mens rea, the mental state element of crime, stem from the purported ambiguities of legislation.1 Sometimes the issue involves uncertainty in interpreting a specified mental state—whether, for instance, “willfully” requires an appreciation…

Joshua Kleinfeld A theory of a social practice must be able to carry a certain descriptive and interpretive burden: it must be able to account for those features of the practice so central to its character that, without them, the…

Douglas Husak Suppose we believe that ignorance of wrongdoing should often absolve wrongdoers from blame, criminal liability, and punishment. If so, how should this normative belief be reflected in the structure of criminal law? One of many possible solutions is…

Shon Hopwood In the last forty years, Congress has passed more than a thousand federal criminal laws,1 many of which are unclear on their face. Sometimes Congress omits important information and fails to define key terms. Other times it drafts…