Author: Kim Ferzan



I just wanted to thank the entire gang here at Concurring Opinions for inviting me to blog this month. It is always an exciting (yet humbling) experience to expose one’s views to the world, and I continue to be in awe of those who can come up with provocative and useful content on such a consistent basis.


More on Exams

Here is another sticky exam question:

Should a professor deduct points for “wrong” answers?

Let me defend the “yes” argument. First, the ability to issue spot, is the ability to issue spot. If a student takes the “throw everything against the wall to see what sticks” approach, then they don’t really understand the material.

(Now, that said, I won’t deduct points if the student raises a potential issue/line of analysis and ultimately concludes that it is inapplicable.) But the truly irrelevant, I believe, shows a lack of understanding. I also think that profoundly faulty analysis deserves deductions as well. If the student’s analysis shows that he/she doesn’t understand the law, I deduct points for it.

(Now, before my crim 1Ls start to panic, this doesn’t mean that every single misstep is a deduction, but I do believe that there is a difference between a student who gives a mediocre analysis and a student who gives a mediocre analysis and then throws in irrelevant junk. The first student simply understands the course better.)

I know everyone doesn’t share this view. Counterarguments?


The Nature of Our Profession I

I thought I might take the opportunity while guesting here at Co-Op to talk about the nature of legal scholarship. One topic that I think is worth discussing is the nature of our conferences.

First, there is the standard “panel” conference. Each panel has three or so law profs. Each prof writes a paper prior to the conference and summarizes the paper at the conference. After all three panelists have spoken, audience members ask questions for about an hour. Second, there is the commentator format. Each session is about one or two papers, often the commentator goes first and the panelists respond, (although the order can be reversed). Then, audience questions.

In contrast, there are two “conference” formats that are less common. One is the “no presentation, no commentator, 100% questions” format. Bottom line: come prepared or don’t come at all. Another format is the innovative “roundtable.” Here no one writes a paper. Rather, a small group 10-20 folks get together to talk about a pre-selected group of materials and hash out the issues.

How to choose? Keep reading…

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Holistic Culpability

I just uploaded onto SSRN my paper, “Holistic Culpability” from Cardozo Law Review’s symposium on George Fletcher’s new book, The Grammar of Criminal Law.

Here’s the abstract:

There are two competing conceptions of mens rea. The first conception is descriptive. We look to a person’s mental state to determine if the mental state element is satisified. This is a question of fact. Alternatively, there is the normative conception of mens rea. This is the question of whether the defendant is blameworthy. The term, mens rea, or “culpability,” can therefore refer to the descriptive usage (did the defendant have the requisite mental state, i.e, purpose or knowledge?) or to the normative usage (is the defendant blameworthy, wicked, indifferent?).

The tension between descriptive and normative terminology was first identified by Professor George Fletcher more than thirty years ago. In this essay, I aim to dissolve it. Descriptive terms are culpability’s grammar; normative terms are culpability’s meaning. I begin with Professor Fletcher’s discussion of the conflict between descriptive and normative mens rea in his new work, The Grammar of Criminal Law, and his clear preference for normative terminology. I then turn to analyze the subject of the debate – an agent’s culpable choice, and argue that there are several different aspects of that choice. Next, I argue that in assessing culpability, we do not focus upon one aspect; rather, the grammar gives meaning to the whole. Although I contend that descriptive and normative culpability can be reconciled, I claim there is a more unified conception of culpability, which simplifies, but does not distort, how the parts give meaning to the whole. In the final part of this essay, I discuss negligence, which admittedly cannot be explained by my theory. I argue, however, that liability for negligence presents problems within the grammar of criminal law as Professor Fletcher finds it.

Comments welcome!


If At First You Don’t Succeed

First of all, let me thank Dan and the rest of the Co-Op gang for inviting me to participate in this terrific blog.

So, it seems that hiring season is coming to a close. Larry Solum is tracking entry-level successes here and Dan Filler has the scoop on laterals here.

But for all those happy folks out there, there are plenty of candidates who did not get jobs. And the question for them is whether they should “try, try again.”

My thoughts on “if” and “how” below the fold:

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