Wrongfulness and Prohibitions

This paper responds to Antje du-Bois Pedain’s discussion of the wrongfulness constraint on the criminal law. Du-Bois Pedain argues that the constraint is best interpreted as stating that φing is legitimately criminalised only if φing is wrongful for other-regarding reasons. We take issue with du-Bois Pedain’s arguments. In our view, it is neither a necessary nor sufficient condition of legitimate criminalisation that φing is wrongful in du-Bois Pedain’s sense. Rather, it is a necessary (albeit insufficient) condition of legitimate criminalisation that φing is what we call bare wrongful—that is, that the reasons in favour of φing are defeated by the reasons against. Though du-Bois Pedain is critical of this view, we argue that her criticisms do not convince.     

Science in the Courtroom: Vital to Best Interests and Reasonable Efforts

This essay was adapted from a speech presented by the author on February 12, 2008 at a Colloquium entitled “What's Best for Children? How Judges Use Neuroscience to Break the Cycle of Child Maltreatment.” The colloquium was sponsored by the Harvard Center on the Developing Child and held at Harvard Law School. It focuses on the wealth of knowledge that has been discovered about infant and child development and the importance of incorporating that knowledge into judicial decision making in child maltreatment cases.     

The History in “Critical Legal Histories”: Robert W. Gordon. 1984. Critical Legal Histories. Stanford Law Review 36:57–125

This commentary explores Robert Gordon's “Critical Legal Histories” from the perspective of the discipline of history. It argues that we are still stalled at the intellectual juncture that Gordon described so well twenty‐five years ago because functionalism and the resulting problems that Gordon addresses in the area of sociolegal studies also pervade the discipline of history. The results reinforce the divide between sociolegal studies and other kinds of historical studies that tend to inhibit the conceptual transformation that Gordon advocates and to marginalize legal studies within the discipline of history.