Papers by Theodore Blumoff
Social Science Research Network, May 9, 2005
There is a tendency among those who identify themselves as subjectivists on the issue of defining... more There is a tendency among those who identify themselves as subjectivists on the issue of defining criminal intent to dismiss or minimize the role of actual non-trivial harm in the determination of criminal liability and punishment. That is to say, they are those who argue that an individual’s subjective intent is a sufficient indication of potential dangerousness and culpability to justify punishment. In this essay, the author presents a view, based on Adam Smith’s recognition of the “irregularity of the sentiments,” that actual physical harm matters; that it reflects the negative component of the two great motivators, pleasure and pain; and that it can release the worst sort of emotional reactivity: retribution. The infliction of a non-trivial first order harm can invoke a deeply felt aesthetic reaction which, in turn, reflects our natural (and cognitively “irregular”) human sentiments. Trying to dispense with harm as a feature in our understanding of criminality seems prima facie absurd. Awareness of the sentiment, as Smith understood, helps temper the worst parts of our nature: that which hopes to crush the people and ideas we find threatening. Ironically, the existence of and need for harm as a necessary condition of criminality heightens our awareness of the limitations of reason in dealing with victims of crime. We are not simply cognitive creatures.
Mercer Law Review, 1993
This Essay is brought to you for free and open access by the Journals at Mercer Law School Digita... more This Essay is brought to you for free and open access by the Journals at Mercer Law School Digital Commons. It has been accepted for inclusion in Mercer Law Review by an authorized editor of Mercer Law School Digital Commons. For more information, please contact
Law and Psychology Review, 2014
Social Science Research Network, 2001
*Professor of Law, Mercer University School of Law, Macon, Georgia. Special thanks to a number of... more *Professor of Law, Mercer University School of Law, Macon, Georgia. Special thanks to a number of friends and colleagues including Sanford Kadish, Jack Sammons, and -- who have offered helpful comments. ... 1Sanford H. Kadish, Moral Excess in the Criminal Law, 32 ...
Social Science Research Network, 2009
Hastings Law Journal, 1990
Wilmarth. Their comments and encouragement significantly improved the final product. My research ... more Wilmarth. Their comments and encouragement significantly improved the final product. My research assistant, Karen Dykes Valente, provided valuable and timely help. As always, my partner, Jane McNamee Blumoff, asked the right questions and made the right editorial changes. 1. Although I focus primarily on the United States Supreme Court's effort to capture the elusive intent of framers and ratifiers, for the purposes of this Essay I make no distinction between that traditional sort of history and what I have called the Court's historiography, namely, use of its own precedent. In terms of the use of history as a dissonance reduction technique, there is no discernible difference. See infra Part III.
bepress Legal Series, 2006
Special thanks to Karen Kovach, Jack Sammons and Doug Yarn for many helpful comments. This is an ... more Special thanks to Karen Kovach, Jack Sammons and Doug Yarn for many helpful comments. This is an expanded version of a paper I delivered at the annual Squaw Valley conference of the Gruter Institute for Law and Human Behavior in May 2006. I thank the many attendees who offered useful comments and asked incisive questions.
Mercer Law Review, 2010
Few would dispute the proposition that ... social cognition, emotion, and behavior (W) emanate fr... more Few would dispute the proposition that ... social cognition, emotion, and behavior (W) emanate from the brain ().'
Social Science Research Network, Apr 14, 2009
Page 1. From the SelectedWorks of Theodore Y. Blumoff May 2009 The Neuropsychology of Justificati... more Page 1. From the SelectedWorks of Theodore Y. Blumoff May 2009 The Neuropsychology of Justifications and Excuses: Some Problematic Cases of Self-defense, Duress and Provocation ...
Michie Co. eBooks, 1993
Each chapter of the textbook leads the reader through the chronology of using the pretrial discov... more Each chapter of the textbook leads the reader through the chronology of using the pretrial discovery device in question. At each major step in the chronology, chapters highlight choices facing the litigator and address considerations that may influence the litigator's choice. The focus is ...
bepress Legal Series, 2006
Special thanks to Karen Kovach and Doug Yarn for many helpful comments. An abbreviated version of... more Special thanks to Karen Kovach and Doug Yarn for many helpful comments. An abbreviated version of this paper was delivered at the annual Squaw Valley conference of the Gruter Institute for Law and Behavioral Research in May 2006. Thanks to the many attendees who offered useful comments and asked incisive questions.
Oxford University Press eBooks, Feb 17, 2011
The journal of law and religion, 1994
As I walk to the gate, I have the same fear as I had 50 years ago. It is in me. It is still the s... more As I walk to the gate, I have the same fear as I had 50 years ago. It is in me. It is still the same fear . (Elie Wiesel, Nobel laureate, on the fiftieth anniversary of the liberation of Auschwitz.) There was, in fact, nothing metaphorical about the Germans' systematic murder of six million Jews, nothing metaphysical or literary. The Jews were terrorized, humiliated, herded, enslaved, tortured, shot, gassed and burned; then their bones were ground up, mingled with their ashes and dumped into ponds or pits. There was nothing uplifting about any of this, no saving grace, no redeeming human nobility .
The journal of law and religion, 1999
A two thousand year old Palestinian legend tells of a would-be pagan convert approaching the two ... more A two thousand year old Palestinian legend tells of a would-be pagan convert approaching the two great sages of the day, Shammai and Hillel, and asking both in turn to capture the essence of Judaism while standing on one foot. Shammai snapped at the arrogant young man and ...
The Canadian Journal of Law and Jurisprudence, Jul 1, 2004
There is a tendency among those who identify themselves as subjectivists on the issue of defining... more There is a tendency among those who identify themselves as subjectivists on the issue of defining criminal intent to dismiss or minimize the role of actual non-trivial harm in the determination of criminal liability and punishment. That is to say, they are those who argue that an individual’s subjective intent is a sufficient indication of potential dangerousness and culpability to justify punishment. In this essay, the author presents a view, based on Adam Smith’s recognition of the “irregularity of the sentiments,” that actual physical harm matters; that it reflects the negative component of the two great motivators, pleasure and pain; and that it can release the worst sort of emotional reactivity: retribution. The infliction of a non-trivial first order harm can invoke a deeply felt aesthetic reaction which, in turn, reflects our natural (and cognitively “irregular”) human sentiments. Trying to dispense with harm as a feature in our understanding of criminality seems prima facie absurd. Awareness of the sentiment, as Smith understood, helps temper the worst parts of our nature: that which hopes to crush the people and ideas we find threatening. Ironically, the existence of and need for harm as a necessary condition of criminality heightens our awareness of the limitations of reason in dealing with victims of crime. We are not simply cognitive creatures.
... Defeating the perpetrator is the Page 25. corrective that vindicates our own, pre-injury appr... more ... Defeating the perpetrator is the Page 25. corrective that vindicates our own, pre-injury appraisal of worth, a point both Jean Hampton and Nico Frijda make persuasively. I suspect that is why a number of philosophers who have written ...
Notre Dame Law Review, 1999
While the State may have been aware of the dangers that Joshua faced in the free world, it played... more While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.' The fact is that freedom, like simple absence, of which it is a species, or like power, to which it sometimes leads, is not necessarily either good or bad in itself. 2 Court's Uses of History, in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNIT-[Vol. 70:1 MORAL IMPLICATIONS Some decisions, because of their apparent indifference to the moral consequences of judging, push us over the edge. DeShaney v. Winnebago County Department of Social Services 6 has done that to me. 7 Since God's cruelest challenge is surely the parent's loss of a child, the majority opinion's characterization of Joshua DeShaney's brain death by a brutal father as "undeniably tragic" is jarringly callous. Indeed, the Court seemed to make the result of the case appear preordained. 8 The opinion's relentless syllogism tried to scrub away the residue of the choices its facts demanded. But the issues were not self-deciding. Indeed, like any cert-worthy case, DeShaney arrived on the Court's docket with respectable arguments and useful precedent on both sides.' Although I retell the tragic story of Joshua DeShaney in Part II, I will not belabor that process because his story has been told before and often. Rather, I want to use DeShaney as a vehicle to discuss more generally the morality of judging. To that end, I examine the opinion itself in Part III and its doctrinal and jurisprudential underpinnings in Part IV. It is within the choices the Justices make that the external morality" of judging becomes inescapable. In DeShaney, the currency of those choices was "state action." This doctrine precludes the finding of a constitutional violation in the absence of an act attributable to government." Stated simply,
Georgia State University law review, Jun 1, 2008
for substantial help clarifying the issues, and to Jennifer Richter (Class of 2007) for early res... more for substantial help clarifying the issues, and to Jennifer Richter (Class of 2007) for early research assistance and Megan Boyd (Class of 2008) for later help. Thanks also to the Georgia State University Law Review for the kind invitation to present the work at this Symposium. As always, I am grateful to Mercer University and Dean Daisy Floyd for continuing support. ** In this "network" each "node" (or actor) is directly and reciprocally connected with one another. Although typically one or both parents would serve as a "connector" to the non-family service providers, it routinely happens that each child also has a direct connection to the outside providers. See generally ROBERT A. HANNEMAN & MARK RIDDLE, INTRODUCTION TO SOCtAL NETWORK METHODS (2005),
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Papers by Theodore Blumoff