Abstract: My contribution to this symposium is short and negative: There are no theoretical problems that attach to one’s causing the conditions that permit him to claim a defense to some otherwise criminal act. If one assesses the culpability of an actor at each of the various times he acts in a course of conduct, then it is obvious that he can be nonculpable at T2 but culpable at T1, and that a nonculpable act at T2 has no bearing on whether an actor was culpable at T1 when he caused the circumstances that are exculpatory with respect to his act (or conduct) at T2. Moreover, as I interpret the Model Penal Code, it gets matters close to right on this point.

Abstract: The Model Penal Code, drafted under the auspices of Herbert Wechsler, is the most significant text in the history of American criminal law. Yet, in an important and revealing sense, it is not a foundational text in modern criminal law. What’s more, it is significant precisely because it is not foundational. In this essay, I try to capture the significance of the Model Penal Code — or to call it by its full name, the Model Penal and Correctional Code — by explaining why it is not foundational. Obviously, this is not going to be a taxonomical, or labeling, exercise, propelled by the desire to properly classify the Code. Classification is not the end, but the means. Much like the Model Penal Code’s distinction among, say, offense element types, it is only worth as much as the light it sheds, in this case on the history and complexion of American penality and, with any luck, even on modern penality in general, in other words, on the Model Penal Code’s, and therefore also Wechsler’s, significance in modern criminal law.

Abstract: When, in 1957, at the age of 46, Glanville Williams was elected a Fellow of the Academy, his name had long been a byword among both practising and academic lawyers throughout the English-speaking world as that of its sharpest, most radically critical and most prolific living jurist. He had published three monographs on complex and detective aspects of the common law of obligations, whose originality, sophistication, penetration, breadth of reference, historical acuity, and analytical and critical clarity had set new standards for legal writing in this area. He had been the first to demonstrate how the techniques of linguistic analysis could be used to expose the emptiness of much jurisprudential debate and the irrationality of many a legal distinction. And he had capped all this with (what in its second edition was) a 900-page treatise on the general principles underlying the criminal law, which not only marked a fundamental change of direction in his own work, but also transformed the study of that subject, setting the agenda in it for several decades, and had led to his appointment as the only foreign Special Consultant for the American Law Institute’s great project for a Model Penal Code. He had gone on, following paths first trodden by Jeremy Bentham, to appraise, and find wanting, many of the sacred cows of the English way of administering criminal justice, equalling his mentor in critical rigour and in the disdain shown for ‘Judge & Co.’, but writing infinitely more readable prose that re-ignited debates which still continue. He had also made a pioneering and outspoken study of the lengths to which AngloAmerican law went to protect human life that would be seen as a seminal text when, nearly two decades later, medical law and ethics began to attract the attention of English law faculties. There had, moreover, been

Abstract: The crux of bankruptcy law is giving debtors a fresh start by discharging their debts. Yet society has recognized that some debts should not be discharged because they either have a high level of societal importance or derive from a debtor’s culpable conduct. One of these exceptions from discharge is for defalcation while acting in a fiduciary capacity. The legal meaning of defalcation has been unclear for 172 years, ranging from a breach of trust by one who has charge of money to the misappropriation of money in one’s keeping. A three-way federal circuit split developed on whether a state of mind was required for defalcation and if so, how culpable. In May 2013, the U.S. Supreme Court resolved the circuit split in Bullock v. BankChampaign by establishing a new, heightened mental standard based on the Model Penal Code’s definition of “recklessly.” Bullock’s holding is significant because it did not adopt any of the tests from the circuit split. Bullock’s new test is challenging for three reasons. First, applying a Model Penal Code culpability to civil fiduciary law is awkward because the various sources of fiduciary duties rarely contain a mental state requirement. Second, the Model Penal Code’s recklessly definition is abstract and difficult to apply. For example, instead of focusing on the breach of a fiduciary duty, it concentrates on the risk that a fiduciary duty will be breached. Further, some elements of recklessly must be evaluated from a subjective standard while others require an objective one. Finally, in delineating the new recklessly test, Bullock parenthetically grafted in the separate criminal law doctrine of willful blindness. This synthesis of recklessness and willful blindness, which are two completely different tests, results in a seemingly unworkable standard that does not make sense. This Article explores each element of the new recklessly standard and identifies pitfalls to avoid. It also suggests an approach to reconcile the troubling analytical problems resulting from combining recklessness and willful blindness. This Article concludes by establishing an analytical framework to apply Bullock’s new test.

Abstract: Gideon Yaffe's Attempts is a masterfully executed philosophical investigation of what it means to attempt something. Yaffe is obviously motivated by the fact that the criminal law punishes attempted crimes, and he believes that his philosophical analysis can shed light on and be used to criticize the law's understanding of those crimes. I focus exclusively on the relevance of Yaffe's philosophical analysis of attempts to the criminal law of attempts. I assume that Yaffe's account of what it is to attempt something is basically correct and ask whether the criminal law uses “attempt” in the way Yaffe uses it, and whether it should use Yaffe's conception of an attempt. I conclude that a lot of criminal-law doctrine, including, very importantly, the influential Model Penal Code 's treatment of attempts, is inconsistent with Yaffe's conception of attempts. Because Yaffe is principally interested in what it means to attempt something rather than in the criminal law's treatment of attempts, I believe he misanalyzes the problem of factual versus legal impossibility. And Yaffe's chapter on inherently impossible attempts concludes by positing a quite paradoxical type of criminal attempt, one that is indeed an attempt but for which the defendant should not be convicted because the evidence of its commission is insufficient. I find Yaffe's argument to this effect opaque and therefore unconvincing.

Abstract: Since 2002, hundreds of thousands of United States troops have returned from the Iraq and Afghanistan theaters, many after multiple deployments. The high suicide rate and high prevalence of mood disorders, substance use disorders, and posttraumatic stress disorder (PTSD) in this population have been widely reported. Many returning soldiers have had difficulty adjusting to civilian life, and some have incurred legal charges. In this article, I review the prevalence and legal implications of combat-related PTSD in this population, including how symptoms of PTSD may be relevant in criminal responsibility determinations in jurisdictions that use a M'Naughten standard or American Law Institute (ALI) Model Penal Code test for criminal responsibility. Finally, an actual case in which a criminal defendant was found to lack criminal responsibility in a M'Naughten jurisdiction because of PTSD symptoms at the time of the alleged offense will be presented.

Abstract: Gideon Yaffe’s Attempts is a masterfully executed philosophical investigation of what it means to attempt something Yaffe is obviously motivated by the fact that the criminal law punishes attempted crimes, and he believes that his philosophical analysis can shed light on, and be used to criticize, the law’s understanding of those crimes. Indeed, the book is rich in examples drawn from criminal cases and codes.In this essay, I am going to focus exclusively on the relevance of Yaffe’s philosophical analysis of attempts to the criminal law of attempts. I shall assume that Yaffe’s account of what it is to attempt something is basically correct. What I intend to ask is whether the criminal law uses “attempt” in the way Yaffe uses it, and whether it should use Yaffe’s conception of an attempt. My conclusion is that a lot of criminal law doctrine, and very importantly, the influential Model Penal Code’s treatment of attempts, is inconsistent with Yaffe’s conception of attempts. On the other hand, were the criminal law’s conception of an attempt to conform to Yaffe’s conception, that would represent an improvement. However, that improvement would be inferior to another doctrinal change that would render the notion of an attempt irrelevant to criminal liability.Two final points. Because Yaffe is principally interested in what it means to attempt something rather than in the criminal law’s treatment of attempts, I believe he misanalyzes the problem of factual versus legal impossibility. And Yaffe’s chapter on inherently impossible attempts concludes by positing a quite paradoxical type of criminal attempt, one that is indeed an attempt but for which the defendant should not be convicted because the evidence of its commission.