Criminal Law Conversations. Paul H. Robinson, Stephen P. Garvey, and Kimberly Kessler Ferzan, Editors. Oxford University Press, 2009. ($150 | 768 pages | Hardcover: 978-0-19-539163-3).
Criminal Law Conversations is a collection of thirty-one dialogues between multiple legal scholars on particular issues of criminal law. The authors featured include leaders in the field, and the topics investigated are all current, if not cutting edge. There is enough material covered to justify the volume’s expense and place in academic law libraries or the library of anyone interested in criminal law.
The most notable aspect of the book is its format. The editors began by setting up a website and soliciting criminal law scholars to nominate works they thought worthy of discussion. Articles and book excerpts garnering substantial support were then condensed by their respective authors, and the pooled scholars were invited to draft their own substantial comments to the texts. The original authors then provided their own responses to these comments. The final result was a collection of thirty-one “conversations” on a range of topics within the subject of criminal law, each including the opinions of an original author and a handful of interested commentators.
One of these dialogues begins with Meir Dan-Cohen’s theory on the differences between what he calls decision rules and conduct rules. His initial article divides aspects of criminal law and procedure into these different groups and explores the relationship between them. In a series of replies six legal scholars (including ones hailing from Portugal and Canada) criticize different aspects of Dan-Cohen’s article, and these replies are immediately followed by a response on Dan-Cohen’s part conceding some points while disputing others. The major benefit of Criminal Law Conversation’s approach is that this entire discussion takes place in thirty adjacent pages of a single volume. Arguments are not scattered across journals and years. Moreover, the original author addresses each of the other scholars’ comments in his response, something authors of controversial law review articles not included in this compendium might or might not get around to doing.
A conversation on the effects of remorse and mercy in the criminal justice system, originating with an article of Jeffrie G. Murphy’s, explores the effect a defendant’s apology may have on sentencing or the grant of clemency. Several of the replies discuss problems in gauging the authenticity or voluntary nature of any remorse shown. Joshua Dressler begins a conversation with an examination of the role of provocation in the defense of excuse. There are responses arguing that provocation belongs in the context of a justification defense instead. Whitley R.P. Kaufman explores the imminence requirement in self-defense, particularly in the cases of “battered woman situations.” Responding scholars take issue with Kaufman’s attempt to distinguish imminence from necessity and ascribe a political motivation to its requirement, some by offering up their own examinations of the history of the imminence rule (including the role of eighteenth-century English philosophers) and its continued successes and failings in different situations.
Each of these discussions might have taken years to organically unfold via the usual publishing model for legal scholars. Instead, thirty-one dialogues like these fill Criminal Law Conversations, providing a thorough examination of each issue by a number of scholars actually engaging each other’s arguments. It is not a comprehensive source, dealing only with those criminal law topics that happened to be both the subject of recent study and of interest to a significant amount of the scholarly pool consulted. Nevertheless, it is an extremely worthwhile source for those criminal law subjects it happens to cover. The format, though an interesting and useful twist, might soon be completely supplanted by law journal websites and professors’ blogs, which will only feature more engagement between multiple scholars on a topic as they grow in popularity. In this way, Criminal Law Conversations might even be a harbinger of future scholarly engagement.
Reviewed by Jacob Sayward, Serials Librarian at Fordham Law’s Leo T. Kissam Memorial Library