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Full-Text Articles in Law
Proportionalities, Youngjae Lee
Proportionalities, Youngjae Lee
Notre Dame Law Review Reflection
“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …
The Supreme Court And The Politics Of Death, Stephen F. Smith
The Supreme Court And The Politics Of Death, Stephen F. Smith
Journal Articles
This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …
Proportionality And Federalization, Stephen F. Smith
Proportionality And Federalization, Stephen F. Smith
Journal Articles
The thesis of this Article is that proportionality of punishment has become a casualty of federalization and that the federal courts helped kill it. The federal courts like to portray themselves as the victims in the vicious cycle of federalization, left defenseless in the face of rapacious efforts by Congress and the Department of Justice to use the federal criminal code for their own selfish ends. The federal judiciary repeatedly complains that its judges are overburdened with criminal cases that belong in state court. This is the story the leading lights in the academy have accepted: Congress is responsible for …