The basic dilemma is that any attempt to make residency fully voluntary seems to run afoul of the public goods justification of government while simultaneously failing to defuse the inherent involuntariness
of residency caused by circumstances of birth.
Again the concept of "realistic choice" surfaces but many scholars argue that this concept is value-laden and greatly undermines using moral involuntariness
as a principle of fundamental justice.
He argues that the doctrinal avoidance of moral inquiry is inherent to the nature of the concept of moral involuntariness
(46) which does hot provide a proper normative framework in which to evaluate the emotions that affect an individual's actions.
theory is also incompatible with the intuitive solution to the cases of the coerced terrorist and the nuclear bomb, While the seriousness of the offense thesis would lead to the convictions of both defendants, they would be acquitted under an involuntariness
theory of duress because the coercion to which they were subjected significantly reduced their ability to choose not to commit the crime.
98) However, Justice Wilson pointed out that the normative involuntariness
of a necessary action is assessed in the particular context of the accused's personal situation, thus undermining the principle of the "universality of rights", which requires "that all individuals whose actions are subjected to legal evaluation must be considered equal in standing.
The fundamental basis of the decision is that the Supreme Court created this new principle of fundamental justice because they were worried about the ramifications of equating moral involuntariness
with moral innocence: they denied that morally involuntary behaviour is necessarily not blameworthy.
What has received little attention, but will play a substantial role in our efforts later to pull together the lessons of Haley and other cases, is that a significant part of the plurality's analysis of the involuntariness
of John Haley's confession was that he was denied the opportunity to confer with a lawyer.
go into interview mode" would lead to "badgering," Chief Justice Roberts responded: "I thought there was no dispute on this record that there was no involuntariness
in Hypnotic Responding and Dissociative Symptoms.
Specifically, a defense of duress under the bar should establish a presumption of involuntariness
in favor of applicants who make an adequate factual showing that they in fact served as child soldiers.
67) Focusing on the relationship between emotion, choice and moral involuntariness
, a concept given constitutional status by the Supreme Court in R.
Phillips and Frederick (1995:250) also refer to a statement by Herman indicating that traumatic re-enactments often act mysteriously, in that, irrelevant of "the level of conscious awareness that accompanies them, they seem to have a quality of complete involuntariness
and driven tenacity".