Legal Commentary

As I mentioned in a recent post, I believe the scholarly debate about whether particular defenses should be categorized as justifications or excuses has little practical utility to offer the criminal justice system.  Although I am in a distinct minority (at least three out of the five most cited criminal law and procedure professors are enthusiastic participants in the conversation, as are many other distinguished criminal law scholars), I was comforted by the company: Kent Greenawalt wrote an important paper in 1984, contending that "Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way."  And Mitchell Berman wrote a lovely paper in the Duke Law Journal in 2003 entitled Justification and Excuse, Law and Morality, forcefully questioning the focus on justification and excuse, concluding: "To be sure, so long as scholars are going to employ it, it's important that they should get the distinction right.  But whether they should employ it at all is a separate question, one about which I am frankly skeptical."  That these distinguished experts took a contrarian position gave me confidence that the issue was at least debatable.  

So you can imagine my shock when I saw that Professor Berman had gone over to the dark side.  He posted a co-authored paper, Provocation as Partial Justification and Partial Excuse, treating the distinction he was once skeptical about as meaningful and important; I could find only a few passing and, I would say, unrepresentative references to his prior work in the new paper.  To be sure, the paper is elegant and interesting; the only problem is that it is an example of a genre I thought he had debunked.  I feel like I turned on C-SPAN  to see Ralph Nader testifying before the Senate Finance Committee as a paid lobbyist of the U.S. Chamber of Commerce, or dropped in to KFC to find Peter Singer with his mouth full of the new Doubledown sandwich.