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The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham
The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham
GW Law Faculty Publications & Other Works
The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be …
Constitutional Structure, Judicial Discretion, And The Eighth Amendment, Bradford R. Clark
Constitutional Structure, Judicial Discretion, And The Eighth Amendment, Bradford R. Clark
GW Law Faculty Publications & Other Works
The Supreme Court recently resolved a longstanding split in its Eighth Amendment jurisprudence when it declared that the cruel and unusual punishments clause delegates to federal courts broad discretion to exercise independent judgment to evaluate the propriety of punishments authorized by state law. The Court claimed authority to displace a punishment - however widely employed - based on the Court's own assessment of the penological effectiveness of the punishment and the moral culpability of the particular class of offenders. Notably, the Court did not, and has not in the modern era, attempted to justify its approach in terms of either …