Daniel Maggen is a J.S.D. Candidate at the Yale Law School and a lecturer at Yale University. Daniel served as a Senior Law Clerk to the Honorable J. Salim Joubran of the Supreme Court of Israel, and has written and published in the areas of criminal law, law and technology, and legal theory. Supervisors: Anthony Kronman
The #MeToo movement is often criticized for its conflation of sexual assault, sexual harassment, ... more The #MeToo movement is often criticized for its conflation of sexual assault, sexual harassment, and offensive but not legally actionable behavior. This objection is often accompanied by criticism of #MeToo's failure to adhere to the legal paradigms that inform sexual assault and harassment, presumably setting back the efforts to advance them. Finally, the #MeToo movement is often faulted for its failure to accord those it accuses with the procedural safeguards of due process. Responding to these objections, This Article claims that instead of viewing #MeToo only as an effort to make the prohibition of sexual assault and harassment more effectual we should also understand it as the attempt to articulate the moral wrong od sexual degradation that has hitherto been hidden in the shadow of extant legal wrongs. In this, the Article claims, #MeToo is the continuation of the mutuality approach in legal scholarship, developed in response to a transactional shift that has taken hold of rape law. The Article further argues that in its evolution from a scholarly debate to a mass public discourse, the wrong of sexual degradation has taken on three distinct features. First, like sexual harassment, sexual degradation revolves around the communicative and intentional aspects of the harm rather than on its tangible effects. Second, although sexual degradation mostly subscribes to the mutuality paradigm's condemnation of the use of non-sexual leverages against another individual's sexual judgment, #MeToo mostly reserves condemnation to those cases in which such leveraging takes place against the backdrop of domination, allowing the transgressor to use his non-sexual eminence to trump the victim's sexual judgment. Third, unlike the mutuality paradigm, #MeToo's conception of sexual degradation commonly disregards sexual degradation that occurs as a result of relational domination, effectively creating a relational exemption.
The one thing that most scholars of criminal law agree upon is that we are in desperate need of a... more The one thing that most scholars of criminal law agree upon is that we are in desperate need of a comprehensive theory of punishment. The theory that comes closest to meeting this demand is the expressive account of punishment, yet it is often criticized for its inability to explain how the expression of communal values justifies punishment and why the condemnation of wrongdoing necessarily requires punishment. The Article answers these criticisms by arguing against the need to necessarily connect punishment to wrongdoing and by developing expressivism into a novel theory of punishment, grounded in the valuative function punishment serves. Offering an original interpretation of Immanuel Kant's Critique of Judgment, the Article argues that criminal law should be understood as a device in the service of the individual's interest in affirming her personhood, an interest that is promoted by the creation and communication of values. The Article posits that criminal law serves this purpose by safeguarding the conditions that facilitate valuative communication. It does so by (1) cataloging the values shared in the community; (2) outlining the ways in which these values are commonly interpreted; and (3) penalty responding to forms of behavior that hinder successful valuation. The Article concludes by examining the prohibition of abortion in light of the values such prohibition purports to protect, distinguishing between prohibitions that legitimately support the function of valuation and those prohibitions that serve communal values irrespective of the important function of valuation. The Article contends that, even if under certain circumstances an affront to protected values could justify the prohibition of abortion, the reasons for prohibition will commonly fail to justify the penal condemnation of those who perform or undergo it.
The #MeToo movement is often criticized for its conflation of sexual assault, sexual harassment, ... more The #MeToo movement is often criticized for its conflation of sexual assault, sexual harassment, and offensive but not legally actionable behavior. This objection is often accompanied by criticism of #MeToo's failure to adhere to the legal paradigms that inform sexual assault and harassment, presumably setting back the efforts to advance them. Finally, the #MeToo movement is often faulted for its failure to accord those it accuses with the procedural safeguards of due process. Responding to these objections, This Article claims that instead of viewing #MeToo only as an effort to make the prohibition of sexual assault and harassment more effectual we should also understand it as the attempt to articulate the moral wrong od sexual degradation that has hitherto been hidden in the shadow of extant legal wrongs. In this, the Article claims, #MeToo is the continuation of the mutuality approach in legal scholarship, developed in response to a transactional shift that has taken hold of rape law. The Article further argues that in its evolution from a scholarly debate to a mass public discourse, the wrong of sexual degradation has taken on three distinct features. First, like sexual harassment, sexual degradation revolves around the communicative and intentional aspects of the harm rather than on its tangible effects. Second, although sexual degradation mostly subscribes to the mutuality paradigm's condemnation of the use of non-sexual leverages against another individual's sexual judgment, #MeToo mostly reserves condemnation to those cases in which such leveraging takes place against the backdrop of domination, allowing the transgressor to use his non-sexual eminence to trump the victim's sexual judgment. Third, unlike the mutuality paradigm, #MeToo's conception of sexual degradation commonly disregards sexual degradation that occurs as a result of relational domination, effectively creating a relational exemption.
The one thing that most scholars of criminal law agree upon is that we are in desperate need of a... more The one thing that most scholars of criminal law agree upon is that we are in desperate need of a comprehensive theory of punishment. The theory that comes closest to meeting this demand is the expressive account of punishment, yet it is often criticized for its inability to explain how the expression of communal values justifies punishment and why the condemnation of wrongdoing necessarily requires punishment. The Article answers these criticisms by arguing against the need to necessarily connect punishment to wrongdoing and by developing expressivism into a novel theory of punishment, grounded in the valuative function punishment serves. Offering an original interpretation of Immanuel Kant's Critique of Judgment, the Article argues that criminal law should be understood as a device in the service of the individual's interest in affirming her personhood, an interest that is promoted by the creation and communication of values. The Article posits that criminal law serves this purpose by safeguarding the conditions that facilitate valuative communication. It does so by (1) cataloging the values shared in the community; (2) outlining the ways in which these values are commonly interpreted; and (3) penalty responding to forms of behavior that hinder successful valuation. The Article concludes by examining the prohibition of abortion in light of the values such prohibition purports to protect, distinguishing between prohibitions that legitimately support the function of valuation and those prohibitions that serve communal values irrespective of the important function of valuation. The Article contends that, even if under certain circumstances an affront to protected values could justify the prohibition of abortion, the reasons for prohibition will commonly fail to justify the penal condemnation of those who perform or undergo it.
Uploads
Papers by Daniel Maggen