In a recent article, Professor Bartlett argues that modifying legal tools in order to reduce implicit race and gender bias is a worthy goal, but one that is almost certainly unattainable. The modern workplace, in her view, is populated mostly by individuals who are well intentioned and committed to nondiscrimination. Legal “coercion” threatens their autonomy and sense of personal efficacy and, as a result, generates a backlash that is more likely to increase workplace bias than to reduce it. Instead of strengthening antidiscrimination laws, the most effective way to create workplace fairness is to restructure work in a way that facilitates our tolerant instincts. Doing so will reduce actions that are discriminatory and unlawful. At the same time, it will make us feel better about ourselves.
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Separating Retribution from Proportionality: A Response to Stinneford
Professor John Stinneford follows his initial article concerning the original meaning of the Eighth Amendment with an excellent article in the Virginia Law Review, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause. In this latest piece, Stinneford argues that the original meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause includes not only a prohibition against barbaric punishments (defined as ones without “long usage”), but also against excessive or “disproportionate” punishments. Stinneford then advocates rethinking the Supreme Court’s Eighth Amendment evolving standards of decency jurisprudence to center the “cruel” inquiry on whether the punishment at issue is “proportionate,” in a retributive sense, in light of prior punishment practices.
Stinneford’s article is important both in that it legitimizes, from an originalist perspective, the use of proportionality in the application of the Eighth Amendment, and in that it offers a proposal for restructuring the application of the Eighth Amendment around this principle. In doing so, Stinneford uses his historical interpretation of the Eighth Amendment to argue for a new approach to applying proportionality in a solely retributive manner.
In this brief Response, I raise two possible objections to Stinneford’s analysis. First, Stinneford insists that proportionality must be solely a retributive concept for Eighth Amendment purposes, both as a matter of original interpretation and sound application. While retribution is certainly part of the “proportionality” analysis, I believe that utilitarian justifications of punishment are also relevant to the concept of proportionality. As explained below, this is true both as a matter of original interpretation and perhaps more importantly as a reasonable basis for the Court’s current application of the Eighth Amendment.
Sosa, Federal Question Jurisdiction, and Historical Fidelity
In his paper “International Human Rights in American Courts,” Judge Fletcher concludes that Sosa v. Alvarez-Machain“has left us with more questions than answers.” Sosaattempted to adapt certain principles belonging to the “general law” to a post-Eriepositivistic conception of common law while maintaining fidelity to certain historical expectations. “[I]t would be unreasonable,” the Court thought, “to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” The Court was unwilling, however, out of concern for assuming a more expansive judicial role than the Alien Tort Statute (“ATS”) justified, to hold that federal courts may hear any claim for a violation of customary international law. In an effort to maintain fidelity to the First Congress’s expectations, the Court held in Sosa“that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted”—specifically, “violation of safe conducts, infringement of the rights of ambassadors, and piracy.”
I will discuss here a problem that Judge Fletcher rightly observes Sosa did not discuss—“the subject matter jurisdiction problem.” In particular, what constitutional power does Congress have to authorize federal court jurisdiction over claims based on customary international law?