January 19, 2008
Long weekend reading from SSRN
Two new pieces on SSRN are worthy of a long look over a long weekend. Here are the links and the starts of the abstracts:
- The Lost Meaning of the Jury Trial Right by Laura I. Appleman
ABSTRACT: The time has come to reevaluate the origins and historical meaning of the criminal jury trial right. The Supreme Court's most recent sentencing reforms have reaffirmed the role of the jury trial right in criminal justice, relying on the jury's historical and constitutional origins as reasons why juries must determine all aspects of punishment. Based on these reforms and the Court's underlying jurisprudence, it may be time to share the criminal jury trial right with the people, restoring some of its lost connotations. Doing so will ensure not only a proper fidelity to both the Constitution and the common law, but also a more engaged and effective use of criminal punishment in sentencing....
- Ordinal Proportionality in Punishment: A Case against Capital Punishment for Child Rape Under the Eighth Amendment by Issa Kohler-Hausmann
ABSTRACT: This article argues that various theories of justice in punishment adhere to a principle of ordinal proportionality — relative grading of penalties in measure to the relative severity of the crimes for which they are imposed. Ordinal proportionality is a demand of both deterrence and retributive theories of justice; in addition it is a tenet well entrenched in the Supreme Court's current Eighth Amendment jurisprudence. Under this principle the state cannot subject the crime of child rape to capital punishment because even a crime as horrendous as rape is not on par with murder in terms of harm and blameworthiness.
January 19, 2008 at 12:45 PM | Permalink
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Gah! Appleman's abstract utterly fails the point of an abstract -- it is quite long for this quintessentially short medium, yet tells the reader very little about the essence of the argument made in the body of the article. Don't tell us why what you have to say is important, tell us what you have to say.
Posted by: ohwilleke | Jan 22, 2008 6:49:25 PM