Monday, December 18, 2017
Gabriel Mendlow (University of Michigan Law School) has posted The Elusive Object of Punishment on SSRN. Here is the abstract:
This essay explores a phenomenon most scholars have neglected and none has studied systematically: judges may agree on a law’s elements even as they disagree about the identity of the wrong the law punishes. One goal of the essay is to show that these largely unexamined disagreements underlie an assortment of familiar disputes — over venue and vagueness and mens rea, over whether an offender’s sentence is proportionate to his offense, and over whether the offense itself is a legitimate object of punishment. All of these disputes may hinge on deeper disagreements about the identity of the wrong a law punishes. These deeper disagreements can be surprisingly hard to resolve, and it is another goal of the essay to explain why. Thanks to the complex inner structure of penal laws and the discretionary mechanisms of their administration, the object of an offender’s punishment can be elusive and obscure.