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88 Tul. L. Rev. 483 (2013-2014)

handle is hein.journals/tulr88 and id is 531 raw text is: Requiring Proof of
Conspiratorial Dangerousness
Steven R. Morrison*
It is overhehningly assuned that crknimal conspuacies pose a 'fistnct evil that
judstfies criminalizing them and providing prosecution-friendly rules of evidence in thei proof
Neal Kumnar Katyalk defense of conspiracy law rests on this assumpton, but Abraham S
Goldstetkk seminal critique notes that it hasnever been emphicallyshown to be tre.
This Article argues that to impose crinmal hability prosecutors ought to be required to
prove a conspir cy & dangerousness. In doing so, it also provides insight into conspiracy law that
Katyal and Goldstein leave undluminated  Their opinions on conspiacyk dangerousness
diveige because they assume diffeent grop data sets: Katyal views only criminal conspracies,
and Goldstein views groups hi general. This Article applies a neutral, systemic analysis where
theirs do not and thus generates workable, effective reforms where theis cannot
To support its argument the Article places the question of conspiratorial dangerousness
in the relevant listory It then establishes a theory ofgroup conduct and applies the Condoret
Jury Theorem and theory of group polarzation to demonstrate that a requhed showing of
dangerousness could increase the crimial processs outcome rehbblity enhance the laws
legitimacy conserve judicialresources, andinprovepublic safety
I.    INTRODUCTION..........................................484
I.    HISTORY                 ................................................488
A.     Conspiacyk Ongin: 1285-1305.             ........      ...........489
B.     The Deontological Shift: 1486-1611 ...               ...........489
C     The General Shi: 1611-Seventeenth Century...............491
D.     The Moral Shift: 1717-1832...............                    ..... 491
E      The Rise ofLabor and the Distzct Evil
Assumption: Nineteenth Century ........               ........... 491
III. THEORY                   .................................................498
A.     The Continuum      of Group Conduct .........                .....499
1. Number (4) Conduct: Nondangerous Actual
Criminal Conspiracies         ..............            .....499
*     ( 2014 Steven R. Morrison. Assistant Professor of Law, University of North
Dakota School of Law. I would like to thank Larry Alexander, R. Michael Cassidy, Roger S.
Clark, Ronald K.L. Collins, Ellen Podgor, Aziz Huq, Andrew March, Paul Marcus, Peter S.
Margulies, Wayne McCormack, Lawrence Rosenthal, Robin R. Runge, and Spearlt for their
invaluable advice that led to this Article. Thanks also to the participants at the 2012 ABA
CJS conference, where I workshopped this Article. They are Miriam Baer, Kim Buchanan,
Gregory M. Gilchrist, Michael Rich, and Erin Sheley, and they all provided excellent
comments. I am also grateful to the University of North Dakota School of Law and Dean
Kathryn R.L. Rand for their support. A law school summer research grant made this Article
possible. All errors are my own.
483

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