Jekyll, Hyde, and Criminal Law

I am looking forward to Professor Nicola Lacey’s public lecture at Marquette Law School tomorrow. Lacey’s presentation, the annual George and Margaret Barrock Lecture on Criminal Law, is entitled, “Socializing the Subject of Criminal Law? Criminal Responsibility and the Purposes of Criminalization.”  More information and registration are available here.

For an engaging and succinct introduction to Lacey’s important writing on criminal responsibility, I would recommend “Psychologizing Jekyll, Demonizing Hyde: The Strange Case of Criminal Responsibility,” 4 Crim. L. & Philosophy 109 (2010). In this article, Lacey uses the classic Robert Louis Stevenson story of Dr. Jekyll and Mr. Hyde to illustrate some fundamental tensions in thinking about criminal responsibility.

First published in 1886, Stevenson’s novella concerns a distinguished Victorian doctor, Jekyll, who despairs over his urges to indulge in vice. Jekyll devises a potion that splits the good and evil sides of his personality into distinct identities.   The animalistic Hyde may gratify his lusts without any risk to Jekyll’s reputation, or so it seems. The plan unravels, however, as Jekyll loses the ability to control the transformations, and the Hyde identity becomes dominant. Along the way, Hyde commits a murder and eventually kills himself (and thus Jekyll, too) in order to avoid arrest.

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Dean Joseph Kearney Receives 2015 Faithful Servant Award

Dean KearneyOn October 8, Dean Joseph Kearney received the 2015 Faithful Servant Award from the St. Thomas More Lawyers Society of Wisconsin.

Dean Kearney was honored for many reasons, including his expansion and support of the Marquette Volunteer Legal Clinic, his commitment to a culture of public service, and his efforts to ensure that the Law School serve as a public forum for discussion and debate. Justice Janine Geske introduced Dean Kearney, emphasizing his longstanding dedication to law students, faculty and staff, the community, and the legal profession. Student Windsor Wrolstad, president of the student chapter of the St. Thomas More Lawyers Society, presented the award.

The Faithful Servant award honors an individual “who, in the course of religious, legal, community, public or human services, has exemplified in outstanding fashion the commitments and steadfast dedication of Thomas More, first to Almighty God, and to family life, statesmanship, and the law.”

The dean is also giving the Archdiocese of Milwaukee’s Pallium Lecture on Wednesday, October 21 at 7:00 p.m. at Mount Mary University. The topic is “The Supreme Court and Religious Liberty,” and the public is welcome.

Congratulations, Dean Kearney.

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Supreme Court Roundup Part Two: King v. Burwell

Obama_signs_health_care-20100323On October 5, I participated in an event at the Marquette University Law School entitled “Supreme Court Roundup” with Cato Institute Scholar Ilya Shapiro.  The event was sponsored by the Law School Chapters of the Federalist Society and the American Constitution Society.  A previous post contained my remarks on Obergefell v. Hodges (the “Gay Marriage case”).  What follows are my prepared remarks on King v. Burwell (the “Obamacare case”).

The issue in this case was whether the Affordable Care Act’s tax credits are available in States that have a federal health insurance exchange rather than a state exchange. In Section 36A, the Affordable Care Act (commonly known as “Obamacare”) states that tax credits “shall be allowed” for any “applicable taxpayer.” Then, in Section 36B, the Act provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State.” (emphasis added).

In King v. Burwell, the U.S. Supreme Court, in an opinion written by Chief Justice John Roberts, held that Section 36B allows tax credits to be used for insurance purchased on any exchange created under the Act, including insurance purchased on a federal exchange.

I want to be clear.  I make the following statement with the intent to be as objective and non-partisan as possible.  This litigation was nothing more than a post hoc attack on the Affordable Care Act, using one isolated provision of the law read out of context in order to arrive at a nonsensical meaning, which then used a manufactured theory of legislative intent – a theory without a shred of contemporaneous support in the legislative history – in a desperate attempt to prop up the nonsensical meaning.

The background of how this case arose is illuminating.

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