Manhattan (location to be sent after RSVP)
2:00PM -- 5:00PM
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Jacob Bronsther (Michigan State): Liability to Society: A Theory of Punishment
Abstract: A longstanding problem in criminal law theory is that general deterrence appears to violate liberal limits on using people for the greater good. Why should an offender bear the burden of preventing the crimes of total strangers? This Article seeks to resolve this problem by reconceiving criminal wrongdoing, victimhood, and accountability. The wrong is best understood as a contribution to the presence of crime in society; the victim is society itself; and deterrent punishment is the proper tort-style remedy, insofar as preventing future social harm can repair past social harm. When deterrent punishment is the most efficient means of preventing crime, and when it is limited to rectifying the harm to society for which an offender is responsible, it does not merely sacrifice individuals for the greater good. Instead, it serves as a limited form of reparation—respecting, rather than overriding, the rights and responsibilities of people who commit offenses.
Abstract: A longstanding problem in criminal law theory is that general deterrence appears to violate liberal limits on using people for the greater good. Why should an offender bear the burden of preventing the crimes of total strangers? This Article seeks to resolve this problem by reconceiving criminal wrongdoing, victimhood, and accountability. The wrong is best understood as a contribution to the presence of crime in society; the victim is society itself; and deterrent punishment is the proper tort-style remedy, insofar as preventing future social harm can repair past social harm. When deterrent punishment is the most efficient means of preventing crime, and when it is limited to rectifying the harm to society for which an offender is responsible, it does not merely sacrifice individuals for the greater good. Instead, it serves as a limited form of reparation—respecting, rather than overriding, the rights and responsibilities of people who commit offenses.
Lauryn P. Gouldin (Syracuse): Specific Suspicion
Abstract: Under the Fourth Amendment, do government officials conducting traditional investigative searches need to have probable cause of a particular crime? What seems to have been a settled expectation at the framing of the Fourth Amendment—that government agents conducting searches in connection with traditional criminal investigations would be investigating particular crimes—has weakened over time. Despite the breadth and depth of Fourth Amendment academic literature, scholars have not closely analyzed questions about crime specificity.
The Constitution plainly protects individual rights by requiring suspicion that is particularized to people, objects, and spaces. But crime specificity is a more fundamental rule-of-law requirement—with footing in both the probable cause and particularity text—that ensures that the government has the authority to conduct a criminal investigation. The state should have to identify a particular reason before it may lay hands on a person, collect sensitive data, or invade private spaces.
Crimes of suspicion also play an essential role in restraining the government during the execution of a search. This scope-limiting function of crime specificity is an implicit part of the Amendment’s protection against general government rummaging during warrantless searches and should be interpreted as part of the particularity requirements for warrants as well. Cases and academic commentary too often analyze probable cause and the particularity requirement in isolation, which obscures the interwoven and mutually reinforcing nature of these requirements and their close connection to the government’s crime of suspicion. The constitutional text, relevant historical context, and subsequent doctrinal developments reinforce the claim that the Fourth Amendment requires crime specificity to justify criminal searches, but this requirement needs more robust and explicit modern protection across Fourth Amendment cases.
Abstract: Under the Fourth Amendment, do government officials conducting traditional investigative searches need to have probable cause of a particular crime? What seems to have been a settled expectation at the framing of the Fourth Amendment—that government agents conducting searches in connection with traditional criminal investigations would be investigating particular crimes—has weakened over time. Despite the breadth and depth of Fourth Amendment academic literature, scholars have not closely analyzed questions about crime specificity.
The Constitution plainly protects individual rights by requiring suspicion that is particularized to people, objects, and spaces. But crime specificity is a more fundamental rule-of-law requirement—with footing in both the probable cause and particularity text—that ensures that the government has the authority to conduct a criminal investigation. The state should have to identify a particular reason before it may lay hands on a person, collect sensitive data, or invade private spaces.
Crimes of suspicion also play an essential role in restraining the government during the execution of a search. This scope-limiting function of crime specificity is an implicit part of the Amendment’s protection against general government rummaging during warrantless searches and should be interpreted as part of the particularity requirements for warrants as well. Cases and academic commentary too often analyze probable cause and the particularity requirement in isolation, which obscures the interwoven and mutually reinforcing nature of these requirements and their close connection to the government’s crime of suspicion. The constitutional text, relevant historical context, and subsequent doctrinal developments reinforce the claim that the Fourth Amendment requires crime specificity to justify criminal searches, but this requirement needs more robust and explicit modern protection across Fourth Amendment cases.