Contents -- Preface -- Table of Contributors -- Acknowledgments -- I. PRINCIPLES -- Chapter 1. Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law -- Comments -- Duress Is Never a Conduct Rule -- Decision Rules as Notice: The Case of Fraud -- Of Decision Rules and Conduct Rules, or Doing the Police in Different Voices -- Separation, But Not of Rules -- The Constitutive Function of Criminal Law -- Are There Two Types of Decision Rules? -- A Liberal Criminal Law Cannot Be Reduced to These Two Types of Rules -- Reply: Meir Dan-Cohen -- Chapter 2. Empirical Desert -- Comments -- The False Promise of Empirical Desert -- Compliance-Promoting Intuitions -- A Fertile Desert? -- The New Desert -- Keeping Desert Honest -- Desert: Empirical, Not Metaphysical -- Response to Lee and Lister -- Empirical Desert and the Endpoints of Punishment -- Empirical Desert: The Yin and Yang of Criminal Justice -- Legitimacy as Strategy -- Sentencing, Empirical Desert, and Restorative Justice -- Reply: Paul H. Robinson -- Chapter 3. Defending Preventive Detention -- Comments -- Slobogin on Dehumanization -- Don't Abandon Sentencing Reform to Defend Preventive Detention -- The Presumption of Innocence versus Preventive Detention -- Unreliability, Innocence, and Preventive Detention -- The Dangers of Dangerousness as a Basis for Incarceration -- Reply: Christopher Slobogin -- Chapter 4. The Economics of Crime Control -- Comments -- The Limits of the Economic Model: Becker's Crime and Punishment -- The Economic Analysis of Crime Control: A Friendly Critique -- Efficient Deterrence and Crime Control -- Law, Economics, and Neuroethical Realism -- Reply: Doron Teichman -- Chapter 5. The Difficulties of Deterrence as a Distributive Principle -- Comments -- Deterrence's Complexity -- Making Deterrence Work Better -- In Defense of Deterrence.

For General Deterrence -- Reply: Paul H. Robinson -- Chapter 6. Why Only the State May Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions -- Comments -- Eliminating the Divide Between the State and Its Citizens -- Why the State May Delegate the Infliction of Criminal Sanctions -- Why Only the State May Decide When Sanctions Are Appropriate -- Why Do Privately Inflicted Criminal Sanctions Matter? -- Reply: Alon Harel -- Chapter 7. Results Don't Matter -- Comments -- Some Reasons Why Criminal Harms Matter -- Why Criminal Harms Matter -- Results Don't Matter, But . . . -- On the Reducibility of Crimes -- Reply: Larry Alexander and Kimberly Kessler Ferzan -- Chapter 8. Post-Modern Meditations on Punishment: On the Limits of Reason and the Virtue of Randomization -- Comments -- Games Punishers Play -- Chance's Domain -- The Lure of Ambivalent Skepticism -- Punishment Must Be Justified Or Not at All -- Reply: Bernard E.Harcourt -- Chapter 9. Remorse, Apology, and Mercy -- Comments -- Retaining Remorse -- Invasions of Conscience and Faked Apologies -- Evaluation of Remorse Is Here to Stay: We Should Focus on Improving Its Dynamics -- Insincere and Involuntary Public Apologies -- The Social Meaning of Apology -- Reply: Jeffrie G. Murphy -- Chapter 10. Interpretive Construction in the Substantive Criminal Law -- Comments -- Unexplained, False Assumptions Underlie Kelman's Skepticism -- Unconscious Choices in Legal Analysis -- Interpretive Constructions and the Exercise of Bias -- Interpretive Construction and Defensive Punishment Theory -- Reply: Mark Kelman -- Chapter 11. Criminalization and Sharing Wrongs -- Comments -- Sharing Wrongs Between Criminal and Civil Sanctions -- Victim, Beware! On the Dangers of Sharing Wrongs with Society -- Sharing the Burdens of Justice -- Contractualism and the Sharing of Wrongs.

Sharing Reasons for Criminalization? No Thanks . . . Already Got 'Em! -- Public versus Private Retribution and Delegated Revenge -- Reply: S.E. Marshall and R.A Duff -- Chapter 12. Monstrous Offenders and the Search for Solidarity Through Modern Punishment -- Comments -- Domesticated Monsters -- "We Have Met the Enemy and He Is Us": Cognitive Bias and Perceptions of Threat -- Have Good Intentions Also Fueled the Severity Revolution? -- Reply: Joseph E. Kennedy -- II. DOCTRINE -- Chapter 13. Against Negligence Liability -- Comments -- For Negligence Liability -- The Object of Criminal Responsibility -- Is Negligence Blameless? -- Fatally Circular? Not! -- Cognitive Science and Contextual Negligence Liability -- The Distinction Between Negligence and Recklessness Is Unstable -- Reply: Larry Alexander and Kessler Ferzan -- Chapter 14. Rape Law Reform Based on Negotiation: Beyond the No and Yes Models -- Comments -- Self-Deception and Rape Law Reform -- Sex as Contract -- Negotiating Sex: Would It Work? -- Conversation Before Penetration? -- You Can't Get Away from Consent -- Reply: Michelle J. Anderson -- Chapter 15. Provocation: Explaining and Justifying the Defense in Partial Excuse, Loss of Self-Control Terms -- Comments -- He Had It Coming: Provocation as a Partial Justification -- Provocation: Not Just a Partial Excuse -- Reframing the Issues: Differing Views of Justification and the Feminist Critique of Provocation -- Tolerating the Loss of Self-Control -- Excuse Doctrine Should Eschew Both the Reasonable and the Ordinary Person -- Get Rid of Adequate Provocation! -- Enforcing Virtue with the Law of Homicide -- Reply: Joshua Dressler -- Chapter 16. Objective Versus Subjective Justification: A Case Study in Function and Form in Constructing a System of Criminal Law Theory -- Comments -- A Platonic Justification for "Unknowing Justification".

The Third, Combined, Theory for Justifications -- In Defense of Subjective Justifications -- Constraining the Necessity Defense -- Reply: Paul H.Robinson -- Chapter 17. Self-Defense and the Psychotic Aggressor -- Comments -- "Self-Defense and the Psychotic Aggressor": What About Proportionality? -- Self-Defense Against Wrongful Attack: The Case of the Psychotic Aggressor -- Justifying Homicide Against Innocent Aggressors Without Denying Their Innocence -- Two Flaws in the Autonomy-Based Justification for Self-Defense -- Problems for the Autonomy Theory of Self-Defense -- Reply: George P.Flecther and Luis E. Chisea -- Chapter 18. Self-Defense Against Morally Innocent Threats -- Comments -- Rights and Liabilities at War -- Why Causal Responsibility Matters -- Can't Sue -- Can Kill -- Can "Moral Responsibility" Explain Self-Defense? -- Doubts About the Responsibility Principle -- Reply: Jeff McMahan -- Chapter 19. Self- Defense, Imminence, and the Battered Woman -- Comments -- The Real Link Between Imminence and Necessity -- In Defense of the Proxy Thesis -- The Values and Costs of Imminence -- Imminence Reconsidered: Are Battered Women Different? -- The "Imminence" Requirement, Battered Women, and the Authority to Strike Back -- Reply: Whitley R.P. Kaufman -- Chapter 20. Reasonable Provocation and Self-Defense: Recognizing the Distinction Between Act Reasonableness and Emotion Reasonableness -- Comments -- Making Waves: Radicalizing Act Reasonableness -- Is an Act Reasonableness Inquiry Necessary? -- Differentiating Cognitive and Volitional Aspects of Emotion in Self-Defense and Provocation -- Norms, Proportionality, Provocation, and Imperfect Self-Defense -- Different Ways to Manifest Reasonableness -- Requiring Reasonable Beliefs About Self-Defense Ensures that Acts Conforming to Those Beliefs Are Reasonable -- Reply: Cynthia Lee.

Chapter 21. Against Control Tests for Criminal Responsibility -- Comments -- The Folk Psychology of Self-Control -- Morse on Control Tests -- Sometimes a Control Test Is Just a Control Test -- Why Is a Folk-Psychological Account of Loss of Control Necessary (And What Precisely Is It)? -- Cognition, Rationality, and Responsibility -- Reply:Stephen J. Morse -- Chapter 22. Abolition of the Insanity Defense -- Comments -- No Excuse for You -- Not By Cognition Alone -- Against Integrationism -- Justifying Defenses -- Reply: Christopher Slobogin -- Chapter 23. Entrapment and the "Free Market" for Crime -- Comments -- Making Sense of Entrapment Law After the Death of Lochner -- Entrapment and the Quandary of the Undercover Investigation -- An Enforcement Policy Perspective on Entrapment -- The Entrapment Defense Defended -- Reply: Louis Micheal Seidman -- III. ADMINISTRATION -- Chapter 24. The Political Economy of Criminal Law and Procedure: The Pessimists' View -- Comments -- The Enduring Pattern of Broad Criminal Codes and a Path for Structural Change -- The Sources of Overbreadth -- Why Here and Why Now? Bringing History and Sociology to Bear on Punitive Pathology -- The Political Economy of Prosecutorial Indiscretion -- An Ounce of Prevention: Realistic Treatment for Our Pathological Politics -- Prosecutor Elections and Overdepth in Criminal Codes -- Reply: Richard H.McAdams -- Chapter 25. Against Jury Nullification -- Comments -- Jury Nullification Checks Prosecutorial Power -- Sculpting the Shape of Nullification Through Jury Information and Instruction -- Jury Nullification and Erroneous Acquittals: Getting the Causation Backwards -- Accuracy and Legitimacy -- Reply: Andrew D. Leipold -- Chapter 26. Race-Based Jury Nullification: Black Power in the Criminal Justice System -- Comments -- Confusing Cause and Effect.

The Effect of Race-Based Jury Nullification on Batson.