Journal Article

The American Criminal Code: General Defenses

Paul H. Robinson, Matthew G. Kussmaul, Camber M. Stoddard, Ilya Rudyak and Andreas Kuersten

in Journal of Legal Analysis

Volume 7, issue 1, pages 37-150
Published in print June 2015 | ISSN: 2161-7201
Published online March 2015 | e-ISSN: 1946-5319 | DOI: https://dx.doi.org/10.1093/jla/lav001

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There are fifty-two bodies of criminal law in the USA. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution toward creating an “American Criminal Code”.

The article is the result of a several-year research project examining every issue relating to justification, excuse, and nonexculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority positions, to the Model Penal Code, and to the National Commission’s proposed code.

Using these results, in focusing on the most controversial justification defense, Defense of Persons, the article then compares patterns among the states on legal issues with a wide range of other variables—such as state population, racial characteristics, violent crime rates, and gun ownership—highlighting many interesting correlations. Applying this kind of doctrinal correlation analysis to all of the project’s existing data would be a major undertaking. The goal here is to show how such analysis can be done, and how interesting the revealed patterns can be.

Journal Article.  47702 words.  Illustrated.

Subjects: Jurisprudence and Philosophy of Law ; Economics

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