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Duke Law

Capital punishment

2007

Duke Law Journal

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Deciding Death, Corinna Barrett Lain Oct 2007

Deciding Death, Corinna Barrett Lain

Duke Law Journal

When the Supreme Court is deciding death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment '' evolving standards of decency '' doctrine, but their criticism misses the mark. Majoritarian doctrine does not drive the Court's decisions in this area; majoritarian forces elsewhere do. To make my point, I first examine three sets of '' evolving standards '' death penalty decisions in which the Court implicitly or explicitly reversed itself, attacking the legal justification for the Court's change of position and offering an extralegal explanation for why those cases came out the …