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Full-Text Articles in Law
Slavery As Punishment: Original Public Meaning, Cruel And Unusual Punishment, And The Neglected Clause In The Thirteenth Amendment, Scott W. Howe
Slavery As Punishment: Original Public Meaning, Cruel And Unusual Punishment, And The Neglected Clause In The Thirteenth Amendment, Scott W. Howe
Scott W. Howe
Steadfast originalists agree that the original meaning of our constitution's language, once found, should be followed, even when it leads to unhappy outcomes. Yet, in a famous lecture in 1989, Justice Scalia, a leader in the modern originalist movement, cast doubt on the duty of fidelity to originalism. He asserted that the originalist judge can appropriately avoid outcomes that are "too bitter" either by deferring to precedent or by temporarily abandoning originalism. Ironically, libertarian and liberal originalists have been among the most dismissive of Justice Scalia's faint-heartedness. They contend that the problem is the narrow approach to originalism that Justice …
Furman's Mythical Mandate, Scott Howe
Furman's Mythical Mandate, Scott Howe
Scott W. Howe
This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that the …
The Value Of Plea Bargaining, Scott W. Howe
The Value Of Plea Bargaining, Scott W. Howe
Scott W. Howe
This article defends plea bargaining and responds to a trend in the academic literature to evaluate bargaining according to a shadow of trial efficiency theory. The efficiency perspective on bargaining gained prominence in the early 90s when two highly respected academics, Robert Scott and William Stuntz, along with a prominent Circuit judge, Frank Easterbrook, endorsed it in articles appearing in the Yale Law Journal. Judicial efforts to justify regularized plea concessions on penological grounds were widely viewed among academics as unpersuasive, and almost all of the academic commentary on bargaining was negative. The shadow-of-trial efficiency theory offered something new. Based …