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Full-Text Articles in Law
No Sense Of Decency, Kathryn E. Miller
No Sense Of Decency, Kathryn E. Miller
Articles
For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …
Entitlement To Punishment, Kyron J. Huigens
Entitlement To Punishment, Kyron J. Huigens
Articles
This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.
An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …
Solitary Troubles, Alexander A. Reinert
Solitary Troubles, Alexander A. Reinert
Articles
Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited. This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.
Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert
Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert
Articles
The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.
In particular, I …
Why Instrumentalism Matters, Kyron Huigens
Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Articles
In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does …
After Philip Morris V. Williams: What Is Left Of The "Single-Digit" Ratio?, Anthony J. Sebok
After Philip Morris V. Williams: What Is Left Of The "Single-Digit" Ratio?, Anthony J. Sebok
Articles
This short essay was written for a symposium on The Future of Punitive Damages held at the Charleston School of Law in 2007. I argue that the ratio rule (that punitive damages that exceed a single digit ratio presumptively violate the Due Process Clause), introduced by the Supreme Court in Campbell, is unlikely to survive. I argue this for three reasons. First, many lower courts have found ways to conceal punitive damages awards that impose, in reality, ratios in the double-digits. Second, the refusal of the Court to reverse the plaintiffs punitive damages award in Williams under the ratio rule …
Deterrence Or Disgorgement? Reading Ciraolo After Campbell, Anthony J. Sebok
Deterrence Or Disgorgement? Reading Ciraolo After Campbell, Anthony J. Sebok
Articles
No abstract provided.
Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah
Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah
Articles
No abstract provided.
Nietzsche And Aretaic Legal Theory, Kyron Huigens
Introduction: What Does It Mean To Say That A Remedy Punishes?, Anthony J. Sebok
Introduction: What Does It Mean To Say That A Remedy Punishes?, Anthony J. Sebok
Articles
No abstract provided.
What Did Punitive Damages Do? Why Misunderstanding The History Of Punitive Damages Matters Today, Anthony J. Sebok
What Did Punitive Damages Do? Why Misunderstanding The History Of Punitive Damages Matters Today, Anthony J. Sebok
Articles
In 2001 the Supreme Court, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc. suggested that, although modern punitive damages punish, in earlier times they almost exclusively compensated for noneconomic damages that were ignored by a less progressive legal system. This article demonstrates that the historical foundation upon which the Supreme Court bases its argument is groundless. In the Eighteenth and Nineteenth Centuries punitive damages served a number of functions, but none of them were to provide the noneconomic damages identified by the court. Instead, as the article shows, the sort of injuries for which punitive damages were once demanded …
Solving The Apprendi Puzzle, Kyron Huigens
Rethinking The Penalty Phase, Kyron Huigens
Rethinking The Penalty Phase, Kyron Huigens
Articles
This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation …
Jewish Law And The State’S Authority To Punish Crime, J. David Bleich
Jewish Law And The State’S Authority To Punish Crime, J. David Bleich
Articles
No abstract provided.