Legal Theory Lexicon: Standards of Review

This post, from Lawrence B. Solum at the Legal Theory Blog, offers a basic introduction to the concept of the standard of review.

Law students begin to encounter the concept of a "standard of review" earlier in the first year. That's not surprising. First-year law students read appellate cases, and every appellate decision explicitly or implicitly includes a standard of appellate review--a rule that defines the relationship between the appellate and trial court. For example, the standard of appellate review on questions of law is "de novo." . . .

As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. All the usual caveats apply, this is a very basic introduction that emphasizes theoretical issues--it is not intended as a review of the various legal doctrines that are discussed.

Prof. Humbach on Free Will

Pace University School of Law Professor, John A. Humbach, has posted an article titled Free Will Ideology: Experiments, Evolution and Virtue Ethics on SSRN. Prof. Humbach's article has been featured on Legal Theory Blog under a title Humbach on Free Will.

Free will could never have evolved in a world of ordinary biological forces. There is, moreover, substantial experimental evidence against it. This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do. The essay proceeds from the assumption that hurting people is presumptively wrong and therefore requires justification. If this assumption is true, then the factual dubiousness of free will presents a serious problem for current penal practices. Because the evidence makes free will unlikely and the logic of evolution makes it impossible, an important underpinning of the criminal law appears to fail. A variant of free will, so-called compatibilism, does not solve or avoid the problem of justification. It seems on the contrary to be merely a repackaging of an ancient form of virtue-ethics under which people are deemed to deserve to suffer because they are what they are.

Griffin On the Wrong Person Defense

Pace University School of Law Professor, Lissa Griffin, has posted an article titled Avoiding Wrongful Convictions: Re-Examining the 'Wrong-Person' Defense (Seton Hall Law Review, Vol. 39, 2009) on SSRN. Prof. Griffin's article has been featured on Legal Theory Blog under a title Griffin On the Wrong Person Defense.

This article reviews the history of the right to present a defense and closely examines the United State Supreme Court's modern analysis of that right. Part III. analyzes the emergence of the right to present a defense that a third party committed the crime and concludes with a discussion of the Supreme Court's recent decision in South Carolina v. Holmes. Part IV. then describes the current restrictive implementation of the wrong-person defense by the lower courts. Part V argues that the constitutional right to present a wrong-person defense is being insufficiently protected under the current, arbitrary standards, and prescribes a constitutional analysis of the defense that is consistent with the Supreme Court's jurisprudence, more reflective of what the lower courts actually are doing, and that it likely to produce more reliable results.