“With Friends Like These . . .”: New Critiques of Graham and Miller

The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade. Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder. I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller. Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another). Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.  

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Technology at the Court: Riley and Aereo

Like the legal profession generally, the United States Supreme Court has a reputation as slow to embrace new technologies. For example, Justice Kagan shared in an interview last year that the Justices rarely use email. Yet at the end of the recent term, the Court decided cases affecting two evolving technologies: cell phones and streaming video services. Unanimous in the judgment in Riley v. California, the Court held that the search incident to arrest doctrine does not allow police officers to search through the contents of an arrestee’s cell phone without obtaining a warrant. In American Broadcasting Companies v. Aereo, the Court concluded that a provider of video streaming services engages in a public performance and infringes copyrights by using dedicated antennae to capture broadcast signals and then transmit them to subscribers over the internet. However, in the opinions in these cases, the Justices seem careful to avoid allowing any personal unfamiliarity with cell phones or with Aereo’s streaming service to affect the quality of their decisions. Instead, the Justices confront the technologies in a pragmatic manner, focusing on the functions easily accessible to average users and avoiding analysis of underlying technological details.

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US Supreme Court Review: Lane v. Franks

US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

This past year has been another active one for labor and employment law cases at the United States Supreme Court.  Decisions have ranged from public employee free speech to the collection of dues by public-sector unions to the fiduciary duties owed under employee benefits law when a plan fiduciary invests in company stock.   This blog post focuses on the public employee free speech case, Lane v. Franks, No. 13-483 (June 19, 2014), while two subsequent posts will discuss the labor law cases of Harris v. Quinn and NLRB v. Noel Canning, and finally the ERISA case of Fifth Third Bancorp v. Dudenhoeffer

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