Volume 71| Fall 2020 | Issue 4



Thoughts on Zaibert’s Rethinking

Michael T. Cahill

In responding to Leo Zaibert’s Rethinking Punishment, I face a daunting although not altogether unwelcome challenge, namely that I am in firm and fundamental agreement with its central claims. Like Zaibert, I have spent some time in the past arguing against deontic retributivism (and addressing the work of some of the same scholars, such as Michael Moore) and have also spent some time arguing against theoretical monism and in favor of a more pluralistic account of punishment—not to spoil anything for potential readers of my work, but the title of my book chapter “Punishment Pluralism” pretty much gives the ending away in this regard. In rejecting a deontic and monistic account of retribution, I have advanced a framework I described as consequentialist retributivism, which would probably prove to have some modest distinctions from what Zaibert calls axiological retributivism if we worked out every last detail, but our general perspectives certainly have much more in common than not. We both reject the notion of retribution as a deontic duty, would characterize it more as an intrinsic good (or value), and recognize that it coexists with various other goods or values that the state generally, and the criminal-justice system in particular, must also pursue. I should note that, happily for my confidence in the soundness of these views yet unhappily for my sense of having made a unique contribution to the intellectual conversation, Zaibert and I are not at all alone among recent commentators in adhering to these positions.

State Punishment and Meaning in Life

Youngjae Lee

Despite popular beliefs about what philosophers do for a living, it is not common for philosophers to opine on the meaning of life. It is even less common to see discussions of the meaning of life in works addressing the philosophy of punishment. Leo Zaibert’s Rethinking Punishment is unique for this reason. The book displays an unabashed enthusiasm for the question about the meaning in life and shows us why the question matters for criminal law theory.

Justice or Mercy?

Vera Bergelson

The central theme of Leo Zaibert’s thoughtful, witty and provocative book is the uneasy relationship between justice and mercy, punishment and forgiveness. Both justice and mercy have value in a civil society; however, from the philosophical perspective, those values are doomed to clash. Their clash is systemic and unavoidable because justice and mercy are fundamentally incompatible—either the defendant receives the punishment that he deserves or he is shown mercy and is forgiven some or all of the deserved punishment.

Selective Incompatibilism, Free Will, and the (Limited) Role of Retribution in Punishment Theory

Luis E. Chiesa

In his important Rethinking Punishment, Leo Zaibert provides a novel and thought-provoking defense of retribution.1 Although I am not a retributivist, there is much to learn from Zaibert’s defense of the role of retribution within a pluralistic account of punishment. One of the virtues of Zaibert’s treatment of the topic is that it incorporates arguments from a variety of important theorists, including some that have not been traditionally associated with discussions about punishment. In particular, Zaibert’s deployment of G.E. Moore’s discussion of organic wholes as a vehicle to help us better understand the role that desert-judgments play in everyday life is as fascinating as it is illuminating.

The Place of Retributivism in Punishment

Ekow N. Yankah

It is no small thing to refresh debates on punishment generally and retributivism in particular. Leo Zaibert takes on this demanding project in Rethinking Punishment, a thoughtful, wide-ranging and worthy book.1 If legal theory is interesting precisely because it engages so many different fields, it is open to criticism because it so often badly trails the fields it references. This has left parts of legal theory stuck in conversations where philosophy departments have long since introduced important sophistications. Zaibert’s book aims squarely at bridging this gap, bringing to bear a broad array of important conversations in moral philosophy to criminal theory. Among the book’s many qualities—its breadth and creativity—it is Zaibert’s ambition to both reenergize and reshape a certain type of debate in punishment theory that most stands out.

Responses to Critics

Leo Zaibert

I am very grateful to Rutgers Law School for the Symposium it organized around my book, Rethinking Punishment, which took place in the Baker Courtroom at the Center for Law and Justice of the Newark Campus on September 21, 2018. My gratitude above all goes to Vera Bergelson, who first thought of this idea, and then took care of the all- too-often thankless tasks related to the organization of the event. I am, of course, also indebted to all the participants at the Symposium: Vera Bergelson, Mitchell Berman, Michael Cahill, Luis E. Chiesa, Stephen P. Garvey, Youngjae Lee, Alice Ristroph, and Ekow Yankah, and to the members of the audience—some of whom, particularly Anthony Dillof and Douglas Husak—participated quite actively. I feel simultaneously honored and humbled to have such a distinguished group of colleagues, whose work I admire so much, engage with my book. Finally, I am very grateful to the editors of the Rutgers University Law Review, for deciding to memorialize substantial portions of what transpired during that Symposium.

Legal Injection? The Constitutional Frailty of Lethal Injection and the Legal Justification for Nitrogen Hypoxia

Austin Hilton

This Note focuses on the constitutional history of lethal injection, from its origins as a seemingly fool-proof method of execution in 1977 to its modern-day status as a fundamentally flawed mechanism for carrying out capital punishment. Specifically, as a result of capital punishment abolitionists and judicial avenue-paving, lethal injection has become a constitutionally frail method of execution that is on the brink of facing elimination under the Eight Amendment’s ban on “cruel and unusual punishment.” Furthermore, there is an alternative method of carrying out capital punishment—nitrogen hypoxia—that is beginning to gather steam around the country, which could prove to be the legal death-knell of lethal injection. This Note explores the root causes of lethal injection’s legal faults, and argues that nitrogen hypoxia is largely immune to those same pitfalls. In doing so, this Note argues that nitrogen hypoxia is a constitutionally superior method of execution and that states seeking to continue with capital punishment should consider phasing lethal injection out in favor of nitrogen hypoxia.

No Disclaimer for the Domestic Abuse Evader: Why Alimony and Child Support Obligers Should be Barred from Their Right to Disclaim Inheritances

Fabian N. Marriott

The demography of the American family has changed drastically over the last thirty-five years due to increasing divorce rates and children born of parents who are not legally married. This in turn has led to a drastic increase in the number of families who rely on support from the parent or spouse for maintaining their household. As a result, the arena of family law has had to evolve and respond to the changing family dynamic by making profound changes in the area of child support and alimony laws during this period. “Analyses by the U.S. Census Bureau since 1978 have consistently shown that less than 60 percent of children in single-parent families have child support orders; of those with orders, fewer than half receive full payment and many receive nothing at all.” Furthermore, children raised in these environments are five times more likely to live in poverty than children living with both parents.