The EU within the G8: A Case of Ambiguous and Contested Actorness. College of Europe EU Diplomacy Paper 05/2009, August 2009

This paper analyses the degree of European Union (EU) actorness within the Group of Eight (G8). Drawing on the work of Jupille and Caporaso, actorness is probed along the criteria of ‘recognition’, ‘authority’, ‘autonomy’ and ‘cohesion’. We argue that the vague and informal nature of the G8 is conducive to EU participation in the summit. The system of EU representation within the G8 can be seen as a case of constructed ambiguity because the ambiguity that is inherent in the EU’s participation has been institutionalized within the G8. When assessing the above criteria, actorness of the EU as a whole remains questionable. However, recognition, authority, autonomy and most of all cohesion differ considerably per context. We suggest that the ‘independence’ aspect of ‘autonomy’ constitutes a weakness in the conceptuali-sation of actorness and may better be replaced by ‘proactivity’. Finally, on the basis of our findings it can be tentatively hypothesised that a number of factors condition EU actorness in the G8, including the degree of integration at EU level, the degree of politicisation and whether or not an EU member state is acting as G8 host

Provocation at Face Value

To take provocation at face value is to plead and prove it as a manslaughter offense, as it is defined in most criminal codes. To do this seems to be both unnecessary and impossible. The defendant has the best access to evidence of provocation and will benefit from the proof of this partial defense, so why should he not be required to prove it? The prosecution has no incentive to prove provocation manslaughter because the definition of this offense includes a murder. Why would the prosecution, having proved a murder, set out to prove a lesser crime than the crime for which it already has a conviction? However, this Article will demonstrate that normative theory obligates us to treat provocation manslaughter as an offense, and that it is possible to do this as a practical matter. The argument is a conceptual argument in the normative theory of punishment. The best theoretical description of provocation manslaughter is as an offense, and not as a partial justification defense or as a partial excuse premised on a partial loss of responsible agency. Once we distinguish three things that are usually conflated—intentions, intentional actions, and intent elements—we can see that provocation manslaughter depends on proof of a particular intentional act of killing, and that this proof brings a particular set of the defendant’s intentions to the fore for purposes of determining his desert for punishment. This set of intentions is different from the set of intentions that proof of a killing with intent, murder, brings to the fore for purposes of determining desert. Regardless of any reference to an intent to kill in the definition of provocation manslaughter, this kind of manslaughter is logically and normatively different from, and exclusive of, murder—in just the same way that reckless manslaughter is. If reckless manslaughter is an offense, then provocation manslaughter is an offense as well—and should be proved as one—because there is no conceptual difference between the two kinds of manslaughter, relative to the other homicides. This Article shows how we can treat provocation manslaughter as an offense as a practical matter. We should adopt a set of rules that provide discovery to the prosecution, that obligate it to make a prima facie case on pain of a mistrial and bar to reprosecution, and that reverse the ordinary order of jury deliberations so that provocation manslaughter is considered first and murder is considered second—or not at all, if the jury has convicted the defendant of provocation manslaughter. These rules will provide an incentive for the prosecution to prove provocation manslaughter and a disincentive to sandbagging that proof in an attempt to obtain a murder conviction instead. More importantly, the proposed rules enable us to live up to our rule of law ideals—including the principle of lenity as well as the requirement of proof beyond a reasonable doubt—in a way that treating provocation as a partial defense does not. If we take provocation at face value, then we can better preserve criminal law’s constitutional principles, theoretical consistency, and moral integrity

A Critical Introduction to the Symposium

Introduction for a symposium issue in reply to Reid Fontaine\u27s article Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification

What Is and Is Not Pathological in Criminal Law

In a recent article in this law review, William J. Stuntz argues that criminal law in the United States suffers from a political pathology. The incentives of legislators are such that the notorious overcriminalization of American society is deep as well as broad. That is, not only are remote corners of life subject to criminal penalties - such things as tearing tags off mattresses and overworking animals - but now crimes are defined with the express design of easing the way to conviction. Is proof of a tangible harm an obstacle to using wire and mail fraud statutes to prosecute political misconduct? Well, then, eliminate tangible harm as an element of proof! The cumulative effect of this multi-dimensional overcriminalization is not just the enhancement of prosecutorial power, but its expansion at the expense of the judiciary. With a broad palette of highly specific offenses to work with, the prosecutor effectively adjudicates. If proof of a serious offense is unavailable, the prosecutor can convict nevertheless through proof of several less serious but more conveniently tailored offenses - usually by means of. a plea agreement bargained for in the shadow of nearcertain conviction at trial. And this rich palette of offenses also enables the prosecutor to exercise legislative power - with the blessings of legislators - as he mixes and matches narrowly drawn offenses into a variegated basis of liability. The upshot is a huge concentration of power and a serious erosion of the rule of law. I think Stuntz has misdiagnosed the problem. My argument is not that the trend Stuntz describes is a good one, but that it is either not pathological, or pathological for a reason Stuntz ignores