Critics of the felony-murder rule have long argued that the rule is outdated and unreasonable, and the Supreme Court since 1982 has interpreted the Eighth Amendment to limit use of the death penalty in felony-murder cases. I present here two economic rationales for the felony-murder rule and show how the Court’s interpretation of the Eighth Amendment might burden potential victims of felonies. The first rationale is that the felony-murder rule reduces the use of violence in the commission of a felony by forcing the felon to bear the entire risk of consequential harm during the course of the felony. The extent to which a “transaction” (be it a contract, a tort, or a crime) is a voluntary exchange is inversely related to the extent of liability for consequential harm. By extending liability for consequential harm, the felony-murder rule is a tax on violence as an input of criminal production. A second economic rationale for the felony-murder rule concerns team production of crimes. The felony-murder rule gives criminal partners an incentive to monitor one another for unnecessary use of violence. One would therefore expect that, by decreasing a criminal’s expected costs of causing consequential harm for an unintended killing during the commission of a felony, the Court’s interpretation of the Eighth Amendment in felony-murder cases increases the incidence of violent felonies.
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Big data has affected American life and business in a variety of ways—inspiring both technological development and industrial change. The legal protections for a person’s right to his or her own personal information, however, have not matched the growth in the collection and aggregation of data. These legal shortcomings are exacerbated when third party privacy […]
Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it […]
The Constitution’s protection of racial and religious groups is organized around the concept of discriminatory intent. But the Supreme Court has never provided a crisp, single definition of ‘discriminatory intent’ that applies across different institutions and public policy contexts. Instead, current jurisprudence tacks among numerous, competing conceptions of unconstitutional intent. Amplifying the doctrine’s complexity, the […]
Symposium on Reassessing the Restatement of Employment Law
The Cornell Law Review hosted a Symposium on Reassessing the Restatement of Employment Law on Friday, November 21, 2014, at Cornell Law School. The Symposium offered the first commentary on Restatement of Employment Law, a twelve-year project, which the American Law Institute approved in 2014. Click for Symposium Agenda
Symposium on Extraterritorialism
The Cornell Law Review will publish its annual Symposium issue for Volume 99 with a focus on extraterritorialism in September 2014. The flurry of recent Supreme Court decisions turning on a revived door-closing territorialism is attracting the attention of legal scholars in various substantive as well as methodological fields of federal law, and the lines […]
Cornell Law Review Submission box is now open
The Cornell Law Review is accepting submissions for Volume 104.
Welcome to CornellLawReview.org
Welcome to CornellLawReview.org, the new online home of the Cornell Law Review. In the spirit of its mission as a student-run journal, the Law Review is launching this site to provide greater access to its top-notch legal scholarship and more publishing opportunities for legal academics. The website will host all of the content that the Law Review publishes in print […]