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    Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?

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    Full-text available at SSRN. See link in this record. (19.25Kb)
    Issue Date
    2008
    Author
    Yung, Corey Rayburn
    Publisher
    Northwestern University School of Law
    Type
    Article
    Version
    http://ssrn.com/abstract=1267450
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    Abstract
    On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution. Three days after the opinion was issued, it was discovered that everyone involved in the case had overlooked a 2006 amendment to the Uniform Code of Military Justice ("UCMJ") that made child rape a death penalty offense. This seeming oversight by the majority led the state of Louisiana and Solicitor General to petition the Court for the case to be reheard. On September 8, the Supreme Court took the highly unusual step of asking for more briefing on whether the case should be reheard. This short article contends that for the Court to grant rehearing based upon the rationales embodied in the Louisiana and Solicitor General's briefs would represent a substantial departure from past Court practice and be contrary to the special treatment that military law has historically received. A careful review of the Court's prior opinions shows that the Court has never considered military law in evaluating the objective indicia of the "evolving standards of decency" even when the military had seemingly relevant provisions. This practice by the Court is almost surely due to its recognition that when Congress amends military law, it only represents a national consensus as to military policy and not civilian policy. As a result, the Supreme Court should not rehear the Kennedy case based upon the majority opinion's omission of the 2006 UCMJ amendment.
    Description
    Full-text available at SSRN. See link in this record.
    URI
    http://hdl.handle.net/1808/11628
    Collections
    • Law School Scholarly Works [617]
    Citation
    Corey Rayburn Yung, Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?, 103 Nw. U. L. Rev. COLLOQUY 140 (2008).

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    Contact KU ScholarWorks
    785-864-8983
    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    785-864-8983

    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    Image Credits
     

     

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