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.

Continue ReadingThe Eighth Amendment and Life Without Parole for Adults

Life in the Digital Age: Is There Such a Thing as a Reasonable Expectation of Privacy?

A few weeks ago, I presented a webinar about the Fourth Amendment in the digital age. In preparation, I tried to find out as much as I can about the different ways law enforcement uses technology in investigations and if and when those uses constitute a search under the Fourth Amendment. What I discovered, boiled down to its most basic, is that if law enforcement can do it in a low-tech way, they can do it high tech. So, for example, if an officer standing on the sidewalk could see into your backyard, then a camera placed on a pole with the same viewpoint would work just as well.

The leading case right now is United States v. Jones, the U.S. Supreme Court’s GPS case from last summer, authored by Justice Scalia. Originally, whether something constituted a search for purposes of the Fourth Amendment had been closely tied to common-law trespass and a person’s connection to property. Over the years, the property-based approach was somewhat pushed aside and the focus was on protecting people, not places. The concept “reasonable expectation of privacy” was born and had been the focus of Fourth Amendment jurisprudence. Then came Jones. Jones circles back to property and the concept of trespass. Under Jones, trespass plus an effort to obtain information is a search, warranting the protections of the Fourth Amendment.

Continue ReadingLife in the Digital Age: Is There Such a Thing as a Reasonable Expectation of Privacy?

Studying Law Without the Socratic Method

One of the things I noticed during my semester as an exchange student at the University of Copenhagen is how much legal education in Europe differs from the approach taken by law schools in the United States. The most drastic difference is, without a doubt, the way in which classes are conducted. In U.S. law schools, most professors use the Socratic method and the call system that law students have come to fear. In contrast, in many continental European law schools, courses are taught simply through lectures. On rare occasions a student will interject with a comment or a question, and on other rare occasions a professor will ask for voluntary input from the class, but for the most part, the professor is the only one who speaks. I have sometimes wondered whether a non-Socratic method of teaching adequately prepares students to be effective lawyers. American law students are forced to take a position on the law, make arguments for it, and apply it to the facts. By being subjected to the Socratic method, we are forced to think on our feet and be prepared for any questions that may be thrown at us by a judge, a client, or a fellow attorney. Arguing a position is one of the most important lawyering skills in both litigation and transactional practices. Therefore, teaching these skills would seem to be a valuable part of legal education anywhere in the world.

Given this apparent superiority of Socratic legal education, I have often wondered whether European law students feel they are at somewhat of a disadvantage. After all, they are not being challenged in class on a daily basis to make arguments and defend positions. I was surprised to learn that many European law students do not believe they are left behind in this respect. Many European students I have met say that classes are meant simply to teach about the law. If students wish to develop their litigation skills, they take a litigation class or join a moot court team, but there is generally no cross-over between developing one’s ability to argue and learning about the law. That is, up until the final exam. Interestingly, many law courses here in Copenhagen administer an oral final, where the professor challenges each student’s ability to argue about the law. Effectively, such an exam tests the students’ skills in taking a position on an issue and defending it. The way European law students view it is that they spend the semester learning about the law, and they then argue the law in the exams. Generally, they seem to feel this provides enough practice of argumentative skills.

Continue ReadingStudying Law Without the Socratic Method