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Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt
Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt
Faculty Scholarship
Capital punishment presents a "hard" case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment.
Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme …
Domination In Wrongdoing, George P. Fletcher
Domination In Wrongdoing, George P. Fletcher
Faculty Scholarship
Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs. Both crimes and torts claim victims, however, the victims' responses vary according to context. In criminal cases, the victim responds by hoping that the government will apprehend and successfully prosecute the offender. In tort disputes, the victim responds by demanding compensation.
It is unclear, however, what constitutes wrongdoing. Defining wrongdoing as the violation of rights is unhelpful, for that definition only raises other questions: Who has rights and what is their content? Therefore, to understand the nature of wrongdoing, we should seek a substantive theory …