The discussion in this article of the various types of conduct and rulings that a trial judge may make that impede effective advocacy is not intended to suggest that there may not be other examples of judicial interference. Trial judges have extremely broad discretion to administer the trial, but must do so impartially and with deference to a defendant’s right to the competent assistance of his attorney. When a judge makes rulings that undermine counsel’s effectiveness and his ability to be the guiding hand to his client that the Sixth Amendment contemplates, where there is no clear justification for the judge’s intervention, and when the defendant suffers prejudice from the judge’s interference, then a reviewing court usually will reverse the conviction, concluding that the judge abused his discretion and infringed on the defendant’s right to a fair trial and the effective assistance of his counsel.

A small change in the wording of an existing Federal statute could accomplish the restoration.

This essay sets out and briefly analyses such a proposal.

While these experiments do not definitely exclude the possibility of free will, they do provide affirmative evidence that our brains do not consciously make decisions in quite the way that introspection tells us. As such, they throw into question the factual basis of the free will justification for purposefully inflicting serious human suffering as punishment.

This paper is a break out from an earlier version of my companion paper, Free Will Ideology: Experiments, Evolution and Virtue Ethics, available at SSRN: http://ssrn.com/abstract=1428002.

First of all, free will could never have evolved in a world of ordinary biological pressures. There is, moreover, substantial experimental evidence against it. This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do.

The essay proceeds from the assumption that hurting people is presumptively wrong and therefore requires justification. If this assumption is true, then the factual dubiousness of free will presents a serious problem for current penal practices. Because the evidence makes free will unlikely and the logic of evolution makes it impossible, an important underpinning of the criminal law appears to fail.

A variant of free will, so-called compatibilism, does not solve or avoid the problem of justification. To the contrary, it seems on closer analysis to be merely a repackaging of an ancient form of virtue-ethics under which people are deemed to deserve to suffer because they are what they are.

Society could best condone the conduct of cyberbullies like Ms. Drew if jurisdictions were to include intentional infliction of emotional distress (IIED) in their bundle of criminalized intentional torts. A criminal statute for IIED would not only allow retributive measures, but would serve to deter others from committing similar crimes. This article will explore the appropriateness of criminalizing IIED. Part I will discuss the history and purposes of assessing civil and criminal remedies for the intentional actions of assault, battery, and false imprisonment as well as evaluating the elements of criminalized intentional torts. Part II will explore the limits of IIED and will evaluate whether those causing IIED impart the same type of harm that society punishes through these other intentional criminalized torts. Part III will evaluate whether it is appropriate to criminalize IIED. The article will ultimately conclude that given recent neuroscientific findings, criminalizing IIED makes sense.

Although the articles written for this special issue cover a vast range of subjects, they can be divided into four main categories: (i) the legitimacy of the criminal sanction, (2) the punishability of omissions, (3) the challenges that international criminal law and the fight against terrorism pose to criminal theory, and (4) the theory of justification and excuse. The articles pertaining to the first two categories will appear in the first half of this special issue (Volume ii, Number 3) and the pieces belonging to the third and fourth categories will be published in the upcoming second half (Volume 11, Number 4). In accordance with this general structure, in the pages that follow I will provide a brief summary and critique of the pieces contained in both parts.

Part I provides a brief historical analysis of animal cruelty laws that will show that, although many of these statutes were originally enacted as a way to protect private property, there has been a marked trend, specially in recent times, to punish animal cruelty regardless, and sometimes despite, the property interests involved.

In Part II, the notions of harm, victimhood and consent will be explored in order to lay the groundwork for the claims that will be put forth in the remainder of the article. In light of the issues that animal cruelty statutes raise, particular attention will be paid to discussing John Stuart Mill’s and H.L.A. Hart’s conception of the “harm principle”.

Part III examines five different theories that might be advanced in order to explain the interest that we seek to promote by punishing acts that are harmful to animals, namely: (1) protection of property, (2) protection against the infliction of emotional harm to those who have ties to the injured animal, (3) prevention of future harm to humans, (4) enforcement of a moral principle, and (5) protection of the animals themselves.

In Part IV, I will try to explain why it is not necessarily the case, as many animal law scholars have argued, that because animal cruelty statutes allow for the infliction of harm to animals as a result of hunting, scientific and farming activities, the interest primarily sought to be protected by these laws is something other than the protection of animals. This argument is ultimately flawed because it is premised on a misunderstanding of the structure of criminal offenses in general and of anti-cruelty statutes in particular. Properly understood, the existence of privileges that allow people to infringe the prima facie norm against harming animals merely reveals that society (rightly or wrongly) believes that there are countervailing reasons that justify harming the interest sought to be protected by the offense, not that the prohibitory norm was not really designed to protect animals in the first place.

Yet most countries in the world, including nearly all our closest allies, have abolished capital punishment. None of the four currently operating international criminal tribunals is authorized to give a death sentence. In addition, the advent of the suicide bomber turns the deterrence justification for the death penalty inside out. Might the death penalty help create martyrs rather than discourage similar attacks? Could our imposing the death penalty increase support in the Islamic world for a1 Qaeda and other extremist groups? Furthermore, to what extent as a matter of constitutional law and policy, should a secondary actor, one who did not kill, but who was a member of a terrorist conspiracy, be subject to the death penalty? This Article examines these questions in the context of the Zacarias Moussaoui case, the supposed twentieth hijacker, who, on September 11, 2001, had been held in custody for twenty-six days.