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March 22, 2007

Lots of interesting stuff at SSRN

Here are just some of the interesting-looking new papers I spotted on SSRN for adding to my always growing "to read" pile:

March 22, 2007 at 08:59 AM | Permalink

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The Shapiro article begins with a fallacy I'd never heard before about a week ago, but suddenly seems to be all over the place: that death is invariably worse (in Shapiro's case, "crueler" within the meaning of the Eighth Amendment) than any other punishment, including torture. Compare Dahlia Lithwick, When Less Is More, Slate Magazine (Mar. 21, 2007), available at http://www.slate.com/id/2162374/.

Where does this idea come from? Starting an originalist discussion of the Cruel and Unusual Punishment Clause with the premise that the death penalty is inherently "cruel"--and was considered unconstitutionally cruel in the 18th C., just not unconstitutionally unusual--is a curious perspective.

Posted by: David Krinsky | Mar 22, 2007 10:06:01 AM

To clarify, I do not approach the Cruel and Unusual Punishment Clause from an orginalist perspective. Instead, I emphasize an original understanding -- one that looks to the norms established and ratified by "We the People." It is a slight distinction, but one that does not leave us stuck with what was constitutional or unconstitutional in the 18th century. I am not concerned whether the death penalty was considered unconstitutionally cruel in the 18th century, but instead whether, applying the norms and constitutional directives established by the Eighth Amendment, it could now be considered unconstitutionally cruel. In any event, any discussion of cruelty should be a starting point for a discussion of unusual.

Posted by: Josh Shapiro | Mar 22, 2007 12:44:39 PM

No, Josh, it is not a distinction at all. Emphasizing the original understanding is the "originalist" perspective.

Posted by: Kent Scheidegger | Mar 22, 2007 2:37:05 PM

"any discussion of cruelty should be a starting point for a discussion of unusual"

Seems like a curious thing to say when the second sentence of the abstract is "It is my contention in this essay that unusual must be explored in a separate and independent inquiry from cruel."

Posted by: anonymous | Mar 22, 2007 3:32:41 PM

Maybe it originated with Friedman's Crime and Punishment in American History, a fascinating book, imho:

Reform and Reforming

The post-Revolutionary age was an age of reform in criminal justice. The Bill of Rights, as we will see, codified ideas about fair trials. Reform of criminal justice was in the air. Parts of the old system seemed chaotic and barbaric. The republic seemed to need a new system, more rational, more modern, more just and humane. Reformers, on the whole, hated the death penalty, and to a lesser degree, other punishments of the body--whipping, torture, and the like. (p 63)

The previous pages explain why this was a reaction not only to England, but was also a reaction to how they saw Puritan law practiced in the colonies.

Posted by: George | Mar 22, 2007 3:41:11 PM

"Seems like a curious thing to say when the second sentence of the abstract is "It is my contention in this essay that unusual must be explored in a separate and independent inquiry from cruel."

Perhaps drawing the letter "V" on a piece of paper will clarify the matter for you. Wala! Separate lines on inquiry, same starting point.

Posted by: anonymous | Mar 22, 2007 4:10:30 PM

Ah, "V." Sometimes the knee-jerk blog commenting causes the foot to swing all of the way around and into one's mouth.

I still think there's some tension between the 2 statements, but it was a stupid thing to say without having read the paper.

Posted by: | Mar 22, 2007 5:54:35 PM

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