Law Commons^™

Judging Cruelty, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

he wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states - either politically or constitutionally - to similarly abandon the punishment. Politically, states may succumb to the trend of discontinuing a punishment. Constitutionally, states may be forced to surrender the punishment if it is considered cruel, and, as a result of a large number of states renouncing it, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, …

The Foreign Commerce Clause, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article comprehensively addresses Congress’s powers under the Constitution’s Foreign Commerce Clause. Congress has increasingly used the Clause to pass laws of unprecedented and aggressive reach over both domestic and foreign activity. Yet despite the Clause’s mounting significance for modern U.S. regulatory regimes at home and abroad, it remains an incredibly under-analyzed source of constitutional power. Moreover, faced with an increasing number of challenges under the Clause lower courts have been unable to coherently articulate the contours of Congress’s legislative authority. When courts have tried, their efforts have largely been wrong. The Article explains why they have been wrong and …

Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a “prior substantial connection” to the United States.

I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of …

Does The Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel And Unusual, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional. Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice. The Court's struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence. While …