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December 21, 2007

Some fitting Eighth Amendment weekend reading

With folks gearing up for the Baze lethal injection case and with a fascinating new cert petition involving a challenge to a 12-year-old killer getting a 30-year mandatory sentence (details here and here), it is perhaps fitting than an Eighth Amendment article catches my eye before I call it a week.  Now available here from the University of Pennsylvania Law Review is Youngjae Lee's article entitled "International Consensus as Persuasive Authority in the Eighth Amendment."  Here is the abstract:

This Article is about the epistemic significance of international consensus on constitutional interpretation in the Eighth Amendment context.  First, this Article examines whether meaningful conclusions about one’s desert judgments can be reached through a process of interjurisdictional comparison that focuses on the existence of a consensus on the question of what punishment is appropriate for what crimes and criminals.  Second, this Article examines the relevance of international consensus on penal practices by analogizing the consensus to three different types of consensus: scientific, aesthetic, and moral.  This Article concludes from this discussion that so long as the Supreme Court stays with what this Article calls the “norm-centric analysis” in consulting foreign sources, the existence of an international consensus on a penal practice should not lead us to lean one way or the other about its constitutionality under the Eighth Amendment. This Article then argues that the Court, given its judicial minimalist tendencies, is unlikely to go beyond its norm-centric mode of analysis and also that abandoning the norm-centric analysis would counsel against consulting types of foreign legal materials, such as international human rights treaties, that do not reveal reasons behind the norms that they endorse.  This Article ends by exploring both broader implications and limits of arguments made in this Article for the judicial borrowing debate.

December 21, 2007 at 05:12 PM | Permalink

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Comments

Reading summaries like that is why I got out of philosophy. I'm sure there's a way to clearly express what this article is about without using jargon. I mean, why write something like this:

"This Article then argues that the Court, given its judicial minimalist tendencies, is unlikely to go beyond its norm-centric mode of analysis and also that abandoning the norm-centric analysis would counsel against consulting types of foreign legal materials, such as international human rights treaties, that do not reveal reasons behind the norms that they endorse."

Posted by: Confused | Dec 21, 2007 5:18:18 PM

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