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"The Unexceptionalism of Evolving Standards"

By Douglas A. Berman

The title of this post is the title of this new article from Professor Corinna Lain.  It looks like an interesting and important and timely piece with the SCOTUS confirmation hearing now on-going and the big SCOTUS juve LWOP cases on the horizon.  Here is the abstract: Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the 'evolving standards of decency' doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely, and explicitly, bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court?s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon...continue to full post

Full post as published by Sentencing Law and Policy on July 13, 2009 (boomark / email).