Hedgehogs and Foxes

Robinson on Criminal Law’s Trajectory: Marquis de Sade, Betty Davis, Tina Turner, and John Hinckley

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Paul H. Robinson, University of Pennsylvania Law School, has published Criminal Law’s Trajectory: Marquis De Sade, Betty Davis, Tina Turner, and John Hinckley as U of Penn Law School, Public Law Research Paper No. 25-06. Here is the abstract.

How would some of the bad actors of the past – such as Betty Davis’ stalker Alexander Ross – be dealt with today? How would some of the well-known characters of recent times – Frank Sinatra, John Hinckley, Tina Turner’s manager and husband Ike, and Hustler magazine publisher Larry Flynt – have been dealt with in earlier times? Would some colorful characters of the past – Marquis de Sade, Cornelius Vanderbilt, Oscar Wilde, and Alice in Wonderland author Lewis Carroll – be dealt with as criminals today?

This brief essay examines a pair of matched cases – one old, one recent – on a wide range of criminal law subjects to compare how differently the cases were dealt with, and to draw from those comparisons some broader insights about the criminal law’s trajectory.

In these times of political clashes, it is easy to think of criminal law as being pushed left and right depending upon the political party in power. But in a larger historical perspective, today’s skirmishes are often minor and temporary. A broader historical perspective reveals several foundational trends that have extended over centuries and seem likely to continue: an increase in the nuance with which criminal law judges an offender’s blameworthiness, an increased willingness in a changing world to intrude in public and private activities previously thought beyond the proper reach of criminal law, and a continuing devotion to tracking societal norms as they change.

The essay concludes with a few thoughts about what these long-standing trends mean for the future.

Download the essay from SSRN at the link.

(The people involved in the Sexual Harassment and Stalking section are Ross Alexander, born Alexander Ross Smith, Jr.) and Bette Davis.) –Ed.