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November 29, 2013

"Abstract Risk and the Politics of the Criminal Law"

The title of this post is the title of this intriguing looking new paper by Brenner Fissell now available via SSRN.  Here is the abstract:

Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk.  Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption.  The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk.  What these defenses implicitly assume, though, is that the entity the individual must defer to — the legislature — is itself superior at risk assessment.

This Article attacks this supposition, and discusses the problematic features of legislative deliberation regarding risk in the criminal law.  Many extraneous considerations often enter, and certain inherent features of these bodies make them especially problematic. Defenders of abstract endangerment statutes, then, ought not simply assume that the legislature is epistemically superior to the individual, and bear a greater justificatory burden than they have satisfied thus far.

November 29, 2013 at 01:24 PM | Permalink


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Nice review, but incomplete.


1) The rent seeking theory that negates the superiority of the legislature. So a loby group wants $300 million dollars. That means a lot to them, but raise taxes by only $1 per person. So the public will not fight to stop it. The group will go all out. Try to close prisons, to save the public $5 each, you will destroy thousand of irreplaceable prison guard union jobs.

2) These mala prohibita generate income for government from the asseets of productive males.

3) If the Daubert standard upholds the due process rights of a defendant in tort and criminal litigation, that is a very narrow form of rule making by an expert in a technical field. laws have wider impact, and their validation should have far greater scientific validation. For example, each should have a test application in a small jurisdiction. Prove the intended effect, show there are no important unintended consequences, and that no self dealing has taken place. Because of is punitive nature and its presentation of weapons to enforce any rule, failed laws should be punished as crimes by the authors and enforcers. End all tort immunities. The judge's immunity, and even jury immunities should end.

Posted by: Supremacy Claus | Nov 29, 2013 3:23:16 PM

It is a shame that Doug chose Thanksgiving weekend to post this article. The substance of this post, that the legislature is "superior" to individuals in assigning risk to certain thoughts and actions and implement law to minimize these risks is the "bane" to the populace losing individual rights provided for in the Bill of Rights.

Posted by: albeed | Dec 1, 2013 1:26:38 PM

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