How Do Jurors Decide to Sentence Someone to Death?

Review of: Robin Conley, Confronting the Death Penalty: How Language Influences Jurors in Capital Cases (Oxford 2016)

The Moral Failure of the Clear and Present Danger Test

The clear and present danger test has been used for almost a century to determine the speech the government may restrain. This test assumes that at some point speech transforms into an act and at that moment the speech becomes punishable. Under the clear and present danger test, the First Amendment does not protect speech that is an incitement to imminent lawless action. Professor Dow suggests that the clear and present danger test protects too little speech. He posits that speech should be protected unless the following three conditions are met: (1) the speaker\u27s specific intent in uttering the words was to cause an unlawful injury, (2) the injury in fact occurred as a proximate result of the speech, and (3) the speaker, through his or her speech, overwhelmed the will of the listener. Professor Dow\u27s proposed test is based upon the belief that the listener has a will of his or her own and thus may choose whether to act on the words he or she heard. This test springs from the understanding that the Free Speech Clause recognizes that evil words do not always lead to evil acts. The proposed test would allow the punishment only of the most culpable speakers, those who overwhelm the will of the listener and in essence force the listener to act as the speaker desire

The Establishment Clause Argument for Choice

Although the Court\u27s opinion in Roe has been subjected to substantial criticism, with its attention to the issue of viability coming under attack as an egregious instance of judicial legislation, any constitutional discussion of the abortion issue must begin with Roe itself. I do not propose to defend the jurisprudential analysis in Roe. Instead, my aim is to suggest that the majority\u27s historical survey of the significance attributed by our culture to the moment of viability adumbrates the distinction between cultural and religious values that I propose in this essay. My argument proceeds as follows. Part I of this essay outlines the holding as well as the structure of the opinion in Roe v. Wade. Part II summarizes the weakness of any choice argument that rests entirely on the right to privacy. Finally, Part III identifies a major gap in fourteenth amendment jurisprudence and sketches an argument for choice1o based on the establishment clause of the first amendment

The Establishment Clause Argument for Choice

Although the Court\u27s opinion in Roe has been subjected to substantial criticism, with its attention to the issue of viability coming under attack as an egregious instance of judicial legislation, any constitutional discussion of the abortion issue must begin with Roe itself. I do not propose to defend the jurisprudential analysis in Roe. Instead, my aim is to suggest that the majority\u27s historical survey of the significance attributed by our culture to the moment of viability adumbrates the distinction between cultural and religious values that I propose in this essay. My argument proceeds as follows. Part I of this essay outlines the holding as well as the structure of the opinion in Roe v. Wade. Part II summarizes the weakness of any choice argument that rests entirely on the right to privacy. Finally, Part III identifies a major gap in fourteenth amendment jurisprudence and sketches an argument for choice1o based on the establishment clause of the first amendment

Godel and Langdell--A Reply to Brown and Greenberg\u27s Use of Mathematics in Legal Theory

In 1931, the German mathematician Kurt Godel proved that formal mathematical systems cannot be both complete and consistent. Using an intricate technique known as embedding, Godel was able to use the basic tools of mathematical logic to prove their own indeterminacy. In recent years, scholars addressing law\u27s indeterminacy have begun to discuss the applicability of Godel\u27s Incompleteness Theorems, attempting to prove for law what Godel proved for mathematics. In this Essay, Professor Dow challenges the utility of mathematical analysis in legal discourse. Focusing on a recent article by Mark R. Brown and Andrew C. Greenberg, Professor Dow shows that legal and mathematical reasoning are fundamentally dissimilar, and argues that law should scavenge only from things that law is like. Scavenging from mathematics, and from G6del\u27s work in particular, represents a return to the discredited scientific approach to legal analysis epitomized by Christopher Columbus Langdell. Moreover, Professor Dow explains, attempting to prove law\u27s indeterminacy through formal devices shows a basic misunderstanding of the source of law\u27s inability to mechanically resolve disputes. The root of law\u27s indeterminacy lies in the incoherence of the very concept of the law. Law comprises distinctive sets of norms, entirely discrete normative regimes. The real task of legal theory, Professor Dow concludes, is to determine how we should choose among these competing regimes