The Eighth Amendment and Life Without Parole for Adults

My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN. Here’s the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The article will appear in print in a forthcoming symposium issue of the Missouri Law Review devoted to the Supreme Court’s year-old decision in Miller v. Alabama.

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Marquette Law Repository Reaches Over 1 Million Downloads Worldwide

repository millionThe law school’s repository, Marquette Law Scholarly Commons, was formally announced on the Faculty Blog on August 8, 2012. Less than a year later, Marquette Law Scholarly Commons celebrates its 1,000,000th download! Researchers from all over the world have downloaded articles from the repository. The following twenty countries have the highest download count (from most downloads to least): United States, United Kingdom, India, Canada, Italy, Philippines, Australia, Malaysia, Tanzania, Ghana, Singapore, Pakistan, Colombia, South Africa, Hong Kong, Nigeria, Russian Federation, Kenya, Poland, and France.

The one millionth article downloaded was Freedom of Contract and Fundamental Fairness for Individual Parties: The Tug of War Continues, by Professor Carolyn Edwards. Professor Edwards has been a member of the law faculty since 1974. She was a Woodrow Wilson Fellow in philosophy at the University of California – Berkeley and is a member of Phi Beta Kappa. She is a graduate of the University of Toledo College of Law. Professor Edwards teaches contracts, sales, secured transactions, and negotiable instruments.

Please join us in celebrating this milestone by visiting the Marquette Law Scholarly Commons and browsing our collections.

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United States Supreme Court Cites the Marquette Intellectual Property Law Review

Law professors, like everyone else, have good days and less good days. Then, sometimes, law professors have special days. In these days, something truly unique happens, something that makes law professors especially grateful for their roles as mentors and educators. This past week, I had probably one of the most special days in my law professor career, and it was not about getting tenure, getting promoted or the like (all very special days I can promise!). It was about the success of a student I had the privilege to mentor and supervise, who was one of my very best students, and who made me so very proud. So what happened? An academic dream: the Supreme Court of the United States cited the comment that my former student Lina Monten wrote in 2005, and that we published in the Marquette Intellectual Property Review.

Here is a little more “technical” background. The Supreme Court recently issued its opinion in Kirtsaeng v. John Wiley & Sons, a closely-watched copyright case concerning the issue of whether the “first sale” doctrine of copyright law applies to imported works. Justice Breyer wrote the majority opinion holding that it does, and Justice Ginsburg wrote a dissent (on behalf of herself and Justices Scalia and Kennedy) arguing that it does not. In the course of her dissent, Justice Ginsburg argued that the United States has long taken the position in international negotiations that copyright owners should have the right to prevent importation of copies of their works that they manufactured and sold in another country. (Slip op. at 20-21.) In support of her argument, Justice Ginsburg cited two items, one of which was the comment published in the Marquette Intellectual Property Law Review, written by then-student, now-Marquette Lawyer Lina M. Montén, entitled The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights? (9 Marq. Intellectual Property L. Rev. 387 (2005)). I supervised the comments, which started as a paper that Lina wrote for the International Business Transaction class that I taught during spring 2005. 

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