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Michael O’Hear, Yes to Nondiscrimination, No to New Forms of Criminal Liability: A Reply to Professors Collins, Leib, and Markel, 88 B.U. L. Rev. 1437 (2008)

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88 Boston University Law Review 1437 (2008)


This Essay responds to an article by Jennifer Collins, Ethan Leib, and Dan Markel, Punishing Family Status, 89 B.U. L. Rev. 1327 (2008). Among other things, Collins et al. offer a new normative framework for determining when and how the criminal law may appropriately be used to promote voluntary care-giving relationships. This Essay argues that their framework is misconceived in two respects. First, voluntariness does not offer a persuasive foundation for criminal enforcement of care-giving responsibilities. The voluntary assumption of responsibilities later neglected has not generally been regarded as either necessary or sufficient as a basis for criminal liability, and the type of voluntariness upon which Collins and her coauthors rely actually provides little support for the possible expansion of criminal liability contemplated by their framework. Second, criminal law is generally a poor device for promoting changes in private behavior and raising the status of traditionally marginalized groups (a central aim of Collins and her coauthors). Indeed, in light of the vast gap between the scope of the criminal law and the resources available to police and prosecutors, changes in formal law may prove counterproductive with respect to the normative ends that Collins et al. seek to achieve.

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