Showing papers in "Yale Law Journal in 1963"

Abolish the "Insanity Defense". Why Not?

Abstract: THE crin1inallaw is one of many mechanisms for the control of human behavior. It defines conduct that is thought to undermine or destroy community values. It seeks to protect the life, liberty, dignity, and property of the con1munity and its members by threatening to deprive those who who contemplate such conduct and by inflicting sanctions upon those who engage in proscribed activity. The· sanctions authorized, whether intended to punish, restrain, reforn1, or deter, constitute a deprivation of life, liberty, 'dignity and property. Because of the ,inherent conflict between the values ultimately to· be preferred and their deprivation by the sanctions authorized, the crimil1allaw has sought to minimize the consequences of this paradox through rules of law which restrict the state's authority to sanction. One of these rules, a fundamental restriction, is that before the state can inflict sanctions it· must overcome the presumption of innocence which favots all of us--by establishing beyond a reasonable doubt each elenlent of the offense charged. By defining crimes in terms of such traditionally n1aterial elements as a voluntary act purposely causing a specific result, the laws seeks to exclude fronl criminal liability those who are. not \"appropriate\" subj ects for a given sanction or indeed for any sanction. Thus, if the state fails to produce evidence which establishes each element of the crime or, put another way, if the accused introduces evidence which leaves in doubt any material element, no sanction can be imposed for the crime charged. To illustrate, the state cannot hold a person criminally responsible for nlurder if there was no causal relationship between the shot fired and the death of the. victin1 ; or if the shot was fired without the intent (1nens rea) to kill,· even though death -was caused by the shot; or if the victin1 did not die even though the shot was fired with intent to kill. Recognizing that the elenlents of a given offense may not be sufficiently precise to exclude all those who ought to be free of criminall~ability, the state, in order to maxinlize preferred values, has formulated exceptions which are called defenses. Thus, to prevent the state from actually encouraging criminal activity, the defense of police entrapment, for example, will relieve an offender of liability even if each element of the crime is established beyond doubt. The evaluation of any device for sorting out who is and who is not an

Collective Bargaining and Competition: The Application of Antitrust Standards to Union Activities

Abstract: The applicability of the Sherman Act 1 to union activities has been one of the most disputed legal issues of this century. As late as 1940, for instance, three justices of the United States Supreme Court asserted, in dissent, that a violent strike violated the Sherman Act merely because it prevented the shipment of finished goods in interstate commerce, while the majority held it a matter for local authorities. 3 Simultaneously, the Department of Justice was beginning a controversial, and ultimately ill-starred, series of criminal antitrust prosecutions against certain unions. 4 Even today, 73 years after passage of the Sherman Act and 49 years after the last legislation explicitly directed to the labor-antitrust problem, the debate goes on. Whether to apply the antitrust laws to labor, however, has never been a single, well-defined issue. The debate has, at one time or another, touched on almost every fundamental issue of labor policy: the extent of federal responsibility ;7 the proper role of the executive, judicial, and legislative branches in formulating labor policy ;8

Some Problems of Church and State in the Weimar Constitution

Abstract: BECAUSE the United States was a comparatively new nation when its constitution was drafted, it could in many areas-among which church and state is one of the most important-embark upon a revolutionary political and social experiment without having to clear away the debris left by previous builders. The compromises crystalized in the Weimar constitution, on the other hand, represented but one stage in a lengthy process of interaction which had already molded both church and state. Consequently, although both the Weimar and the Philadelphia documents were products of a political revolution, any examination of the historical background of the 1919 provisions should serve not only to make the compromises they contained more explicable, but simultaneously to demonstrate why the two situations cannot be equated.' The delicate structures which embody institutional compromises, unlike Scottish castles, rarely survive trans-Atlantic voyages. In Germany, the institutional role of religion and churches was inextricably connected with the rise of the nation-state itself. During the Middle Ages, for example, because the territorial magnates who controlled vast tracts of land under the nominal authority of the Holy Roman Emperor in fact represented competing centers of secular authority, the Emperor was forced to turn to church officials for the performance of imperial administrative tasks. This tradition, deriving from the time of the Carolingian Renaissance in the ninth century, resulted in so close a relationship between church and state that Papal efforts to reform the German church in the eleventh century-aimed at the achievement of institutional independence-inevitably led to open conflict with the Emperors. The ensuing Papal victory was complete, the ruling Hohenstaufen line having been literally exterminated by 1268, and the resultant weakening of the central authority played a significant role in permitting centrifugal elements to prevent the unification of Germany until well into the nineteenth century. The heritage of open conflict between church and state, furthermore, was to play an important role in German history in the period immediately following unification.