Lessons Learned from the Evolution of 'Evolving Standards'

Charleston Law Review, Vol. 4, p. 661, 2010

18 Pages Posted: 24 Jun 2010  

Corinna Lain

University of Richmond - School of Law

Date Written: February 18, 2010

Abstract

This symposium contribution traces the evolution of the "evolving standards of decency" doctrine to question the textual defense of the doctrine and the constraining power of law itself. The cases that paved the way to "evolving standards" as a measure of substantive Eighth Amendment protection show the Justices time and again rejecting the result that a cold reading of the law would provide in favor of what they thought was right. In turn, what they thought was right has tended to change with the sensibilities of the time. Herein lies the rub. We can get rid of the "evolving standards" doctrine, but decisions that follow our evolving standards of proper punishment practices are here to stay.

Keywords: death penalty, Eighth Amendment, Cruel and Unusual Punishments Clause

Suggested Citation

Lain, Corinna, Lessons Learned from the Evolution of 'Evolving Standards' (February 18, 2010). Charleston Law Review, Vol. 4, p. 661, 2010 . Available at SSRN: https://ssrn.com/abstract=1629063

Corinna Lain (Contact Author)

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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