Tuesday, June 1, 2010
Dan Markel (Florida State University College of Law), Ethan J. Leib (University of California-Hastings College of the Law), & Jennifer M. Collins (Wake Forest University-School of Law) have posted Rethinking Criminal Law and Family Status, 119 Yale Law Journal 1864 (2010) on SSRN. Here is the abstract:
In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (OUP 2009), we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their review essays, Professors Alafair Burke, Alice Ristroph & Melissa Murray identify a series of concerns with the framework we offer policymakers to analyze these family ties benefits or burdens. We think it worthwhile not only to clarify where those challenges rest on misunderstandings or confusions about the central features of our views, but also to show the deficiencies of the proposed alternatives. While we appreciate and admire the efforts of our critics to advance this important conversation, we hope this Essay will illuminate why the normative framework of Privilege or Punish remains a more helpful structure to policymakers assessing how family status should intersect with the criminal law within a liberal democracy such as our own.