Domination in wrongdoing

Boston University Law Review

Volumn 76, Issue 1-2, 1996, Pages 347-359

  Fletcher, George P ^a  

^a NONE

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EID: 0043232382     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (58)

1. 4 WILLIAM BLACKSTONE, COMMENTARIES * 5 (asserting that private wrongs infringe upon civil rights and public wrongs breach public duties owed to the entire community).
2. See id. at * 6 (contending that the Crown may indict an aggressor in the case of a battery because a public wrong harms the community and the Crown must protect the society from violation of its laws).
3. See id. at * 5 (stating that, because private wrongs injure individuals, individuals must compensate for the wrongs themselves).
4. See KARL MARX, CAPITAL: THE COMMUNIST MANIFESTO AND OTHER WRITINGS 322 (Max Eastman ed., Random House 1932) (premising the conflict between capitalists and workers on the notion that struggles have occurred between classes throughout history).
5. See ANDREA DWORKIN, PORNOGRAPHY 14 (4th ed. 1989) (asserting that pornography promotes male supremacy, violence, and sexual domination over women).
6. See CLAYBORNE CARSON, MALCOLM X: THE FBI FILE 120 (David Gallen ed., 1991).
7. S.C. CODE ANN. § 16-3-20(b)(5) (Law. Co-op. 1976).
8. Anne M. Coughlin, Excusing Women, 82 CAL. L. REV. 1, 32 (1994) (contending that the battered woman syndrome, which is the modern day version of the "marital coercion doctrine," holds negative implications for women because it defines their activity as a product of a "mental health disorder").
9. Id. at 31.
10. See ROBERTO M. UNGER, KNOWLEDGE AND POLITICS 243 (1975) ("For moral union to be representative of the species nature, it must arise from conditions of autonomy.").
11. See id. (explaining that dominance corrupts the authority of a shared value system).
12. Id.
13. See 2 JÜRGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION 70 (Thomas McCarthy trans., 3d ed. 1987) (contending that "the moral authority of an existing institution 'stems' from the so-called collective consciousness").
14. See IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS *452-53 (claiming that for man to achieve morality, which is linked to autonomy, he must free himself from the world of sense).
15. JOHN LOCKE, A LETTER CONCERNING TOLERATION 34-35 (William Popple trans., 2d ed. 1955) (arguing that men should have freedom to choose their religion because God cannot save people forced into religions in which they do not believe).
16. See C.E. FERGUSON & J.P. GOULD, MICROECONOMIC THEORY 224 (Lloyd G. Reynolds ed., 4th ed. 1975) (asserting that consumers, producers, and resource owners must have perfect knowledge in order to have perfect competition).
17. See George P. Fletcher, Law and Morality: A Kantian Perspective, 87 COLUM. L. REV. 533, 539 (1987) (stating Kant's theory that to act morally, one must "abstract oneself from the phenomenal necessity of physical laws and . . . subject oneself to the noumenal prices in a system of perfect competition").
18. See id. (discussing Kant's theory that in order for an individual to act morally, the individual must have autonomy).
19. ISAIAH BERLIN, FOUR ESSAYS ON LIBERTY 122 (1969) (describing "negative freedom" as freedom to act unobstructed by others).
20. Id.
21. Id. at 131 (defining "positive freedom" as one's wish to have freedom to control one's own life).
22. See KANT, supra note 14, at *447 (explaining that autonomous choices achieve the moral law).
23. Id. at *450 (asserting that "freedom and self-legislation of the will are both autonomy and thus are reciprocal concepts").
24. See IRWIN H. HAUT, DIVORCE IN JEWISH LAW AND LIFE 20-25 (1983).
25. Id.
26. Id.
27. See ROBERT LECKIE, THE WARS OF AMERICA 844 (3d ed. 1992) (arguing that due to General MacArthur's skill, the United States helped transform Japan into a self-sufficient democracy).
28. See 9 HENRY FRIEDLANDER, THE NAZI HOLOCAUST 665 (Michael R. Marrus ed. 1989) (discussing how the Allies replaced the government of the Nazi state with military rule after Germany surrendered).
29. See LECKIE, supra note 27, at 529 (recounting after the war, Congress supervised the South by dividing it into five military districts, commanded by federal generals, in order to ensure that it met its post-war obligations).
30. See MELVIN I. UROFSKY, A MARCH OF LIBERTY: A CONSTITUTIONAL HISTORY OF THE UNITED STATES 443-45 (1988) (discussing the congressional plan for reconstruction after the Civil War).
31. See generally George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617 (1993).
32. Howard Kurtz, With Ailes's Aid, Convict Becomes 'Willie Horton' of N.Y. Campaign, WASH. POST, Oct. 20, 1989, at A14 (reporting the allegations of David Dinkins's possible payment to Sonny Carson for remaining quiet until after the election).
33. Id. (reporting that Roger Ailes "pounced on recent disclosures that Dinkins's campaign paid $9,500 in 'walking around money' to a group headed by Carson").
34. This is true only regarding typical transactions. Undoubtedly, cases exist that illustrate demands that people can never repeat.
35. See GEORGE P. FLETCHER, WITH JUSTICE FOR SOME: VICTIMS' RIGHTS IN CRIMINAL TRIALS 6 (1995) (arguing that "[c]onvicting and punishing the guilty is our [society's] way of expressing solidarity with those who have fallen prey to the pervasive violence of American life").
36. See id. at 203 ("Punishment counteracts domination by reducing the criminal to the position of the victim.").
37. Restoration of the relationship of equality is not obvious in a culture that has become accustomed to thinking of punishment as a utilitarian instrument of crime control.
38. See Cesar A. Chelala, Argentine 'Amnesty', N.Y. TIMES, Mar. 14, 1983, at A15 (reporting that human rights organizations claim that the terror in Argentina, after 1976, is the "most systematic and widespread abuse of human rights Argentina has known in this century").
39. IMMANUEL KANT, THE METAPHYSICS OF MORALS *333 (1797).
40. Id.
41. See DAVID DAUBE, STUDIES IN BIBLICAL LAW 122-23 (1947).
42. See KANT, supra note 39, at *333.
43. I am speaking of the popular understanding of the verdict. As a technical matter, of course, the jury in State v. Powell only concluded that they had reasonable doubt concerning the issue of excessive police force. See FLETCHER, supra note 35, at 1 (discussing the anger that African-Americans experienced as a result of the verdict in the Rodney King case).
44. People v. Goetz, 497 N.E.2d 41, 43 (N.Y. 1986) (holding that the prosecutor's charge to the Grand Jury about an objective element in the defense of justification was proper).
45. U.C.C. § 2-712(1) (1991) (dictating that in order for a buyer to recover damages for a seller's failure to deliver goods under the terms of their contract, the buyer must " 'cover' by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due").
46. Id. § 2-713(1) (measuring damages for seller's non-delivery essentially by "the difference between the market price at the time when the buyer learned of the breach and the contract price").
47. 60 Mass. (6 Cush.) 292 (1850).
48. Id. at 296 (asserting that the trial court should have given the jury defendant's instruction stating that "if both plaintiff and defendant . . . were using ordinary care, or if at that time the defendant was using ordinary care, and the plaintiff was not, or if at that time, both the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover").
49. Id. at 295 (remarking that judges found trespass to exist when one received injury from the acts of another).
50. Id.
51. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 29, at 163 (5th ed. 1984) (explaining that Brown has become the leading case).
52. Id.
53. Id. at 480 (explaining that courts use "assumption of the risk" in many different types of tort cases).
54. See, e.g., MODEL PENAL CODE § 213.1 (Proposed Official Draft 1962) (explaining that defendants can rape prostitutes even if the prostitutes put themselves in dangerous situations as long as they do not consent).
55. See generally KEETON, supra note 51, § 78, at 548-54 (tracing the development of American law pertaining to dangerous activities).
56. 124 N.W. 221 (Minn. 1910).
57. Id. (holding that a master may maintain a vessel's moorings to a dock in bad weather, but the dock owner may recover damages from the ship owner if the vessel injures the dock).
58. Cf. George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV.