Article by Janine Young Kim
A great deal of scholarship in the criminal law assumes that the law exists in order to prevent harm, yet largely ignores how that notion may inform the law's form and function. This Article argues that the harm-prevention principle is surprisingly useful in conceptualizing the structure of the criminal law, particularly the relationship between offenses and defenses. Its central hypothesis is that while defenses are often thought of as “exceptions” to the “rules” embodied by offenses, recognition of the harm-prevention principle reveals a much more nuanced picture of the law in which some defenses can be understood to further the rules rather than signify exceptions. To illustrate this point, the Article analyzes both established defenses like self-defense and insanity as well as innovative defensive claims made by battered women and members of cultural minorities.
About the Author
Janine Young Kim. Associate Professor of Law, Southwestern Law School. B.A. 1995, M.A. 1996, Stanford University; J.D. 1999, Yale Law School.
Citation
82 Tul. L. Rev. 247 (2007)