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October 16, 2008

Final version of my article on the SCOTUS death docket

I am pleased to report that Ohio Northern University Law Review now has in print my recent article (from a lecture I gave at ONU) lamenting the Supreme Court's tendency to consider on the merits too many death penalty cases and too few other cases.  (These complaints should be familiar to regular readers, but this piece has more footnotes, data and ideas than my blog grumbling.)   The article is titled, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," and can be downloaded below.  Here is part of the introduction:

My interest in modern sentencing jurisprudence has led me to follow closely the Supreme Court’s certiorari process and choices, and I now believe that more attention (and criticism) should be directed toward the Justices’ performance in their first job of deciding what to decide.  To put my particular concerns bluntly, I have concluded that, at least in the arena of criminal justice, the Supreme Court has recently done a poor job setting its own agenda and its failings have had a negative impact on state and federal legal systems.  Specifically, the Supreme Court has become caught up in what I call a “culture of death:” the Court devotes extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants.  As the title of this commentary suggests, I consider this phenomenon a “capital waste” of the Court’s time, which results in various problems for the administration of both capital and non-capital sentencing systems.

Beyond criticizing the Supreme Court’s troublesome affinity for obsessing over capital cases, I wish to explore agenda-creating and agendasetting realities that can influence the Supreme Court and its work.  My goal is to spotlight some under-examined dynamics that shape the Court’s engagement with legal issues and its work-product, which in turn should facilitate broader reflection on the institution of the Supreme Court and the Justices’ modern efforts in discharging both of their important decisionmaking jobs.  In addition, as a final coda to this commentary suggests, a change in personnel on the Court may prove as consequential for how the Court sets its docket as for how the Court resolves cases.

Download Berman_34-3_Ohio_Northern_Law_Rev.pdf

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October 16, 2008 at 06:02 PM | Permalink


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