Symposium: A New Hope? An Interdisciplinary Reflection on the Constitution, Politics, and Polarization in Jack Balkin’s “The Cycles of Constitutional Time”

Politically, we are living in dark times. Political polarization has increased over the past forty years, reaching an extreme and causing real damage to our political system and to our interpersonal lives. Americans are experiencing more hostility and anger towards their neighbors, family members, and fellow citizens with opposing political views. Growing distrust in government and intense polarization causally contributed to the 2016 presidential election of a populist demagogue whose appeals to toxic prejudices, racial resentment, and baseless fears were designed to exacerbate political and civil division. After he lost the 2020 election, a mob of his most ardent supporters attacked the United States Capitol harboring the delusional belief that the vote was somehow rigged and fraudulent

Is Psychological Research on Self-Control Relevant to Criminal Law?

In recent years scholars have asked whether scientific discoveries - specifically in neuroscience and genetics - should have normative implications for criminal law doctrine and theory, especially with regard to free will and responsibility. This focus on novel and merely potential scientific findings makes Rebecca Hollander-Blumoff’s arguments all the more fascinating: she argues that criminal law scholars have neglected to mine a rich body of social psychological research on the mechanisms of self-control which has developed over the past two decades. She, herself, finds that the psychological research suggests that current criminal law inaccurately circumscribes the scope of situations in which an individual lacked the ability to control her actions. Moreover, she argues that the research permits us to separate issues of self-control from philosophical questions about the existence of free will.This article accepts Hollander-Blumoff’s invitation to mine the self-control research for normatively-relevant insight. It finds, however, that the research has surprisingly little to offer. It does not show that criminal law doctrine excuses too few, and it does not help us draw lines between the responsible and non-responsible independent of broader debates about free will. The article identifies different conceptions of control at work in criminal law doctrine to show the limited scope of law that is relevant to the conception of self-control under psychological study. It further explains why the research’s findings about the “capacity for self-control” are not helpful to discerning whether an individual had the capacity to control his conduct in the sense required for responsibility and blame. Finally, the article counters Hollander-Blumoff’s claim that the research supports the law’s alleged neutrality regarding free will debates. Specifically, the commentary defends Stephen Morse’s view that the law is not philosophically neutral but compatibilist, and in doing so, it responds to recent arguments by Adam Kolber against the compatibilist interpretation of criminal law

Non-Beneficial Pediatric Research and the Best Interests Standard: A Legal and Ethical Reconciliation

In 1966, Henry Beecher, a professor at Harvard Medical School, published an article in the New England Journal of Medicine describing twenty-two cases of unethical medical research, some of which involved children. In the infamous Willowbrook study, for example, researchers deliberately exposed children who were wards in a state facility to hepatitis to study preventive measures. Public attention to research tragedies led to the passage of federal regulations governing human subjects research, including special protections for children. The regulations restricted the participation of children in research, and, in that sense, they have protected children. However, this effort to protect children may partly explain the underfunding and understudy of... health issues unique to children that followed. Consequently, the vast majority of medications prescribed to children today have not been adequately studied in pediatric populations. Since the late 1990s, deploying an array of carrots and sticks, the federal government has sought to increase pediatric research, particularly with respect to pharmaceuticals, to address our lack of knowledge regarding the safety and efficacy of pediatric therapies. Its efforts have worked. Between 1990 and 1997, researchers completed eleven pediatric studies of marketed drugs; since 1997, the Food and Drug Administration (FDA) has requested approximately 800 studies involving 45,000 children in clinical trials. Pediatric research will continue to expand as the President recently signed into law measures to encourage pediatric research regarding medical devices

On the Argument That Execution Protocol Reform Is Biomedical Research

This piece is a response to Seema K. Shah, Experimental Execution, 90 Wash. L. Rev.147

Symposium Foreword: Bombshell or Baby Step? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy

This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper. First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly explores whether there is a principled reason for the Court to invoke Woodson but not Roper from its capital jurisprudence. Second, the Court does cite Roper for its “foundational principle,” which is, according to the Court, “that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” However, this principle cannot be the bedrock of Roper. Since Lockett, state capital sentencing schemes have not proceeded as though juvenile offenders were not children. Juvenile capital defendants could introduce their youth and accompanying characteristics in mitigation. Roper, therefore, is based on a much stronger principle, one that requires categorical removal of juveniles from the universe of death-eligible defendants and, thus, should imply the same for penalties equivalent to death. This Foreword also provides a guide to the symposium’s wonderful contributions by Nancy Gertner, Will Berry, Frank Bowman, Josh Gupta-Kagan, Michael O’Hear, Clark Peters, Mary Price, and Mae Quinn. In doing so, it highlights a fascinating theme running through many authors’ answer to whether Miller represents a “bombshell or babystep”: Miller’s implications for the Court’s methodology for conducting proportionality analyses and, specifically, for the role of “objective indicia” of public attitudes in such analyses

The \u27Abuse Excuse\u27 in Capital Sentencing Trials: Is it Relevant to Responsibility, Punishment, or Neither?

The violent criminal who was a victim of severe childhood abuse frequently appears in the responsibility literature because he presents a difficulty for theorists who maintain the compatibility of causal determinism and our practices of holding persons responsible. The challenge is based on the fact that learning about an offender\u27s horrific childhood mitigates the indignation that many persons feel towards him, possibly indicating that they hold him less than fully responsible. Many capital defendants present evidence of suffering childhood abuse, and many jurors find this evidence to count against imposing death. The most obvious explanation for a response like this is that the abuse was a cause of the crime, and so rendered the offender less than fully responsible for it. But this intuitive explanation theatens the claim that responsibility is compatible with causation. Indeed, if causation is a basis for excuse (even a partial one), the fairness of holding persons responsible is threatened given that all our behavior is caused by factors, such as our upbringing, outside our control. A common compatibilist response to this challenge is that abuse is relevant to responsibility if the abuse caused a diminished capacity for practical reasoning. This response, however, cannot account for all cases in which abuse evidence appears relevant to the punishment determination, and thus I confront the challenge more directly. I argue that there are cases in which it is appropriate for jurors to consider abuse evidence independently of whether the capital defendant\u27s reasoning capacities were diminished and offer an account to justify the consideration of that evidence as mitigating, even when we should resist concluding that the offender was less than fully responsible. My argument rests on distinguishing the capacities required for responsibility from other considerations that militate against punishment and which help justify the criminal law. A minimally decent moral education, which some forms of abuse preclude, is one of those considerations that helps justify the criminal law\u27s harsh penalties. I argue that it is more difficult to justify the death penalty for a defendant who was deprived of a minimally decent moral education compared with others who were not, regardless of whether that defendant\u27s reasoning capacities were sufficient for full responsibility

Symposium: Bombshell or Babystep - The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy: Symposium Foreword

Part II of this Foreword briefly addresses one open constitutional question in the wake of Miller: in light of its rationale, is juvenile LWOP – whether mandatory or the result of an individualized sentencing process – constitutionally permissible? I argue that the Miller opinion itself is incoherent insofar as it permits juvenile LWOP as a constitutionally viable sentence. Part III provides a short synopsis of the controversy among Justices regarding the proper methodology for Eighth Amendment proportionality analyses. Then, with particular attention to the authors’ different takes on Miller’s implications for methodology, Part III provides a guide to the symposium contributions focusing on the Eighth Amendment. Parts IV and V will then briefly summarize our symposium contributions focusing on sentencing policy more generally and on Missouri’s juvenile justice system

Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in lethal injections. In widely publicized litigation, death row inmates argue that the participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or at least permit physician participation

Symposium: Bombshell or Babystep - The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy: Symposium Foreword

Part II of this Foreword briefly addresses one open constitutional question in the wake of Miller: in light of its rationale, is juvenile LWOP – whether mandatory or the result of an individualized sentencing process – constitutionally permissible? I argue that the Miller opinion itself is incoherent insofar as it permits juvenile LWOP as a constitutionally viable sentence. Part III provides a short synopsis of the controversy among Justices regarding the proper methodology for Eighth Amendment proportionality analyses. Then, with particular attention to the authors’ different takes on Miller’s implications for methodology, Part III provides a guide to the symposium contributions focusing on the Eighth Amendment. Parts IV and V will then briefly summarize our symposium contributions focusing on sentencing policy more generally and on Missouri’s juvenile justice system

Non-Beneficial Pediatric Research and the Best Interest Standard: A Reconciliation

Federal efforts beginning in the 1990\u27s have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is non-beneficial ; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children for the good of all. But that rationale is troubling. This article answers two related questions: (1) What is the appropriate legal relationship between NBPR and the best interests of the child standard? (2) What is the ethical justification for this research? I argue that courts should hold that the best interests standard governs pediatric research. But, contrary to existing case law, courts must consider the benefits to each child, including pediatric subjects, from a policy that permits NBPR, and not simply consider that a non-beneficial protocol presents more risk than potential benefit to a child. Moreover, I argue that the justification for the practice need not be utilitarian. There is no need to appeal to the greater good to justify the research because each child has reason to endorse a policy permitting NBPR where there is a very low ceiling on acceptable risk, and each child has reason to participate in a practice from which she benefits. More controversially, I argue that each child, like other persons, has reason to help others when she can do so at little to no cost to herself. The article then highlights practical implications of the offered justifications