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"Can Congress Overturn Kennedy v. Louisiana?"

By Douglas A. Berman

The question in the title of this post is part of the title of this interesting new piece on SSRN by Richard Re.  The full title is "Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence," and here is the abstract: As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of ?national consensus.?  While this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court?s consensus-based argumentation ? namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override.  This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation...continue to full post

Full post as published by Sentencing Law and Policy on January 06, 2010 (boomark / email).