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Desert And The Eighth Amendment Symposium: Cruel And Unusual Punishment: Litigating Under The Eighth Amendment, Youngjae Lee
Desert And The Eighth Amendment Symposium: Cruel And Unusual Punishment: Litigating Under The Eighth Amendment, Youngjae Lee
Faculty Scholarship
The task of this Article is to evaluate these two approaches to understanding the role of retribution as a constitutional constraint. And in order to do so, I would like to first answer a related question, one step removed: What should be the significance of ordinary intuitions about what people deserve when scholars theorize about what people deserve? If a popular belief about a question of desert does not match up with conclusions arrived at through theorizing and reflections about desert, who should revise their views-"the people" or the theorists? I suggest in this Article that the answer is twofold. …
International Consensus As Persuasive Authority In The Eighth Amendment, Youngjae Lee
International Consensus As Persuasive Authority In The Eighth Amendment, Youngjae Lee
Faculty Scholarship
This Article is about the epistemic significance of international consensus on constitutional interpretation in the Eighth Amendment context. First, the Article examines whether meaningful conclusions about one's desert judgments can be reached through a process of interjurisdictional comparison that focuses on the existence of a consensus on the question of what punishment is appropriate for what crimes and criminals. Second, this Article examines the relevance of international consensus on penal practices by analogizing the consensus to three different types of consensus: scientific, aesthetic, and moral. This Article concludes from this discussion that so long as the Supreme Court stays with …
Judicial Regulation Of Excessive Punishments Through The Eighth Amendment, Youngjae Lee
Judicial Regulation Of Excessive Punishments Through The Eighth Amendment, Youngjae Lee
Faculty Scholarship
This article considers judicial regulation of excessive punishments through the Eighth Amendment.