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Constitutional Law

Punishment

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Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization (A Polemic And Manifesto For The Twenty-First Century), Bernard E. Harcourt Jan 2010

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization (A Polemic And Manifesto For The Twenty-First Century), Bernard E. Harcourt

Faculty Scholarship

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we do when we punish? A series of further critiques – of meta-narratives, of functionalism, of scientific objectivity – softened this second line ...


Cruel And Unequal Punishment, Nita A. Farahany Jan 2009

Cruel And Unequal Punishment, Nita A. Farahany

Faculty Scholarship

This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see ...