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Mapping American Criminal Law: Variations Across the 50 States
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Preface It is common for criminal law scholars from outside the United States to dis- cuss the “American rule” in order to compare it to the rule of other countries.1 As this volume makes clear, however, there is no such thing as an “American rule.” Each of the states, plus the District of Columbia and the federal system, have their own criminal law there are 52 American criminal codes. American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is that the landscape of American crim- inal law is one of almost endless diversity, with few, if any, areas in which there is a consensus or near consensus. Even most American criminal law scholars seem to fail to appreciate the enormous diversity and disagreement among the 52 American jurisdictions. The best one can do in most instances is to talk of a “majority rule,” but even this is extremely difficult business. Every jurisdiction recognizes a per- son’s right to defend himself or herself against unlawful force, for example. But what is the “majority rule” in the United States in the formulation of that defense? Jurisdictions disagree on a wide variety of issues within self-defense, most prominently: (a) What constitutes the “unlawful force” that triggers a right to use defensive force? (b) What temporal requirement must be met for an actor’s conduct to be truly “necessary” at that time? (c) What amount of force may be used? (d) When may deadly force be employed? (e) When may an initial aggressor claim self-defense? (f) What is the legal effect, if any, of the defendant provoking the encounter? (g) What is the legal effect of mutual combat on self-defense? (h) Is there a right to resist an unlawful arrest? (i) Is there a duty to retreat from unlawful aggression before using deadly force? There is disagreement among the states on every one of these issues.2 Further, as some of us have demonstrated elsewhere, even when the research is done, it is not so easy to construct the majority American rule. To