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Herbert L. Packer

Bio: Herbert L. Packer is an academic researcher. The author has contributed to research in topics: Mens rea & Supreme court. The author has an hindex of 1, co-authored 1 publications receiving 4 citations.

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Journal ArticleDOI
TL;DR: In this paper, the authors examine how far the Supreme Court has gone in deciding when mens rea is a constitutional requirement and why, and conclude that the Court's failure to make the effort is a mark of inadequate performance in an increasingly important area of its adjudication.
Abstract: \"The existence of a mens rea,\" the late Chief Justice Vinson once opined, \"is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.\"' Mr. Justice Brennan later quoted the remark with evident approval, but went on to add a qualification: \"Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter....\"2 Then, he qualified the qualification: \"[But] there is precedent in this Court that this power is not without limitations.\"3 To paraphrase: Mens rea is an important requirement, but it is not a constitutional requirement, except sometimes. One purpose of this paper is to examine how far the Supreme Court has gone in deciding when mens rea is a constitutional requirement and why. The thesis advanced here is that the Court has accomplished little not contained in the paraphrase attempted above. There are difficulties, but the Court's failure to make the effort isa mark of inadequate performance in an increasingly important area of its adjudication. It will also be suggested that the shortcomings on the constitutional level, both in result and rationale, have been

4 citations


Cited by
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Journal ArticleDOI
TL;DR: In this paper, the theoretical, empirical, and legal underpinnings of zero-tolerance weapons policies are analyzed, and the authors argue that these policies are theoretically unsound, empirically unsupported, and fall prey to several legal critiques.
Abstract: With the passing of the Gun Free School Act of 1994, the 1990s bore witness to the birth of zero-tolerance policies. During the remainder of that decade, several school shootings occurred that solidified zero-tolerance in schools across the United States. With the possibility of threats constantly increasing, school personnel having a thorough understanding of these policies is critical. In this article, the authors analyze the theoretical, empirical, and legal underpinnings of zero-tolerance weapons policies, then argue that these policies are theoretically unsound, are empirically unsupported, and fall prey to several legal critiques. Last, the authors offer recommendations for principals and teachers that would address problems with mens rea and show the value of using threat assessment tools.

58 citations

Journal ArticleDOI
TL;DR: The relationship among different kinds of political cultures, the conduct of judicial elections, and the extent of dissent on the state supreme courts of California, Ohio, Tennessee, and Texas from 1850 to 1920 is explored in this paper.
Abstract: This essay probes the relationship among different kinds of political cultures, the conduct of judicial elections, and the extent of dissent on the state supreme courts of California, Ohio, Tennessee, and Texas from 1850 to 1920 The introduction at the turn of the twentieth century of Progressive election reforms—most notably the secret ballot, the direct party primary, and the nonpartisan ballot—reduced levels of turnout in judicial contests and increased roll-off from major statewide political to judicial elections These reforms made judicial elections the tail on the electoral kite and denied the public its best means of regulating judicial policy making Yet these changes in the electorate's behavior were seemingly unrelated to variations in the rate of dissent in these four state courts, whose judges apparently viewed popular partisan election as more a potential than a real threat to their independence

21 citations

Journal Article
15 Dec 2012-InDret
TL;DR: In this article, a comparison between the sistemas juridicos del common law and the continental-europeo is made, with the aim of ofrecer una descripcion muy general del estado de la cuestion de la figura de strict liability angloamericana.
Abstract: Teniendo en cuenta la acuciante necesidad de profundizar con fines colaborativos en estudios de derecho penal comparado entre los sistemas juridicos del common law y el continental-europeo, este trabajo tiene por objeto ofrecer una descripcion muy general del estado de la cuestion de la figura de la strict liability angloamericana. La finalidad de la resena radica en echar un poco de luz acerca de las caracteristicas, clases, regulacion positiva y fundamentos de una de las formas de imputacion penal del common law que mas propensa se encuentra a criticas descontextualizadas e injustas, cuando se pretende en ella encontrar un vestigio de la primitiva responsabilidad colectiva. Para ello, a lo largo del trabajo se destacan algunas de sus particularidades que, aun cuando la distinguen de los delitos que requieren mens rea, no se apartan radicalmente del requisito basico del acto voluntario como presupuesto de la responsabilidad penal.

7 citations

Journal ArticleDOI
TL;DR: In this paper, a new understanding of strict criminal liability and its implications is presented, which predicts that, other things being equal, strict liability is likely to govern only those elements of a criminal offense for which ignorance is virtually costless.
Abstract: While the controversial doctrine of strict liability occupies an important place in modern criminal law, existing theories fail to explain when and why this doctrine is used instead of mens rea. This Essay advances a new understanding of strict criminal liability and explores its implications. The drawback of a mens rea standard is that it assures ignorant offenders that they can engage in the prohibited conduct without being penalized. This shortcoming, however, will be mitigated when offenders find that the market imposes too high a cost on ignorance. If ignorance is sufficiently costly, offenders will take steps to become (or remain) informed notwithstanding the adverse incentive created by the mens rea standard. The Essay thus predicts that, other things being equal, strict liability is likely to govern only those elements of a criminal offense for which ignorance is virtually costless. The Essay proceeds to demonstrate the illuminating power of this theory by analyzing the seemingly puzzling application of strict liability to liquor-sale to minors, statutory rape, child-pornography, regulatory offenses, criminal liability of corporate officers, and mistakes of law and fact. The Essay concludes by exploring whether alternative doctrines may induce offenders to acquire information without producing the harsh and unfair consequences often attributed to strict liability.

6 citations