Law Commons^™

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Ring Around The Jury: Reviewing Florida's Capital Sentencing Framework In Hurst V. Florida, Richard Guyer

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary discusses Hurst v. Florida, a case in which the Supreme court will review Florida's death sentencing scheme to determine whether it violates the Sixth of Eighth Amendments. The author argues that Florida's capital sentencing framework violates the Sixth Amendment. A jury, rather than a judge, better reflects society's moral views, which are critical to weigh when deciding whether to impose the death penalty.

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

Faculty 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 …

The Young And The Redemptionless? Juvenile Offenders Before Miller V. Alabama, Katherine Johnson

Duke Journal of Constitutional Law & Public Policy Sidebar

The Eighth Amendment to the U.S. Constitution prohibits excessive criminal sanctions, and the Supreme Court has held that this provision has special application in situations dealing with juvenile offenders. This Commentary looks at the recent Supreme Court case of Montgomery v. Louisiana, in which the Court held that there was a constititutional prohibition of life sentences without parole for juvenile offenders. This Commentary argues that this is the correct result under the Court’s Eighth Amendment jurisprudence but that the Court should also have held that the sole remedy for such constitutional violations is resentencing.

The Inequality Of America's Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John Bessler

All Faculty Scholarship

We live in a divided society, from gated communities to cell blocks congested with disproportionate numbers of young African-American men. There are rich and poor, privileged and homeless, Democrats and Republicans, wealthy zip codes and stubbornly impoverished ones. There are committed "Black Lives Matter" protesters, and there are those who—invoking "Blue Lives Matter" demonstrate in support of America‘s hardworking police officers. In her new article, "Matters of Strata: Race, Gender, and Class Structures in Capital Cases," George Washington University law professor Phyllis Goldfarb highlights the stratification of our society and offers a compelling critique of America‘s death penalty regime—one, she …

Anti-Incarcerative Remedies For Illegal Conditions Of Confinement, Margo Schlanger

Articles

Opposition to mass incarceration has entered the mainstream. But except in a few states, mass decarceration has not, so far, followed: By the end of 2014 (the last data available), nationwide prison population had shrunk only 3% off its (2009) peak. Jail population, similarly, was down just 5% from its (2008) peak. All told, our current incarceration rate - 7 per 1,000 population - is the same as in 2002, and four times the level in 1970, when American incarceration rates began their rise. Our bloated prisoner population includes many groups of prisoners who are especially likely to face grievous …

Taking Dignity Seriously: Excavating The Backdrop Of The Eighth Amendment, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on …