Super Lawyers
William C. Altreuter

Tuesday, October 17, 2017

One of the clear trends in Supreme Court 8th Amendment jurisprudence is an increasing reliance on quantitative analysis. Although both Justice Scalia and Justice Thomas reject this approach in favor of a literal reading of the text, that is reductive in my view. At some point the so-called 'plain meaning' of any phrase or sentence requires context, and the approach Justice Kennedy takes in Roper v. Simmons seems to be a reasonable extension of Chief Justice Warren's reasoning in Trop v. Dullas, where we get the concept of "Evolving standards of decency". What does "unusual" mean? Is what was once usual always usual?

I thought this piece was interesting in view of that discussion. . In my practice I've encountered similar sorts of knowledge gaps with judges, particularly in the context of electronic discovery. It is less prevalent now, but judges really didn't understand how computers in real life are different from, say, the computer that Mr. Spock talks to. It is shocking to me that a guy like Roberts, who must have taken a statistics course at some point, finds this stuff so difficult to grasp.

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