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Article

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“Updating the Study of Punishment” (with Dan Kahan and Neal Katyal) 56 Stanford Law Review 1171 (2004)

Abstract

Criminal law, for much of the nineteenth century and part of the twentieth, was at the forefront of interdisciplinary studies in law. Criminologists borrowed heavily from psychology, sociology, and philosophy in an attempt to understand why people act the way they do and how government should punish them. Yet recently, a movement inward has dominated criminal law scholarship. Suffused by doctrine after doctrine, many criminal law scholars now are content to accept technical legal rules instead of asking whether those rules accord with modern knowledge about human behavior.

Recent years have witnessed a tremendous outpouring of research in economics, psychology, sociology, and other disciplines concerning how institutions, incentives, and rules actually affect behavior. This research has had a significant impact on criminal law scholarship. But it has had almost none on popular criminal law textbooks and thus (we suspect) next to none on the education of criminal lawyers.

The narrowness of conventional criminal law is unfortunate. The implosion may lead to incomplete answers to age-old questions in criminal law, and it has deterred criminal lawyers from asking questions that are commonplace in other areas of law. Perhaps most importantly the failure to fully engage in the classroom the kinds of questions that are being pursued in contemporary scholarship puts our students at risk of being ill-equipped to deal with the pressing questions of criminal justice policy.

This state of affairs is in desperate need of correction. To illustrate, we review some basic themes that a useful casebook on criminal law should cover. We will sketch four areas in which interdisciplinary approaches to thinking about the purposes punishment can and should be incorporated into teaching criminal law. Notably, each case emphasizes nonretributivist approaches to punishment, which we believe have gotten short shrift in criminal law textbooks published most recently. The four areas are: (1) the impact of social science research on our contemporary understandings of punishment; (2) modern doctrinal analogues to theft—computer crimes; (3) expressive values of punishment; and (4) criminal law and the legislative process. Through our examination of these four areas, we hope to demonstrate the problems with the typical, stunted view of punishment and the value of our approach.

Date of Authorship for this Version

2004

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