Evolving Standards of Decency and the Death Penalty: The Challenge of 'Objective' Judicial Review of Fundamental Rights.
A Seminar by
Assistant Professor Ian Farrell (University of Texas)
Wednesday, 6 August 2008
Room: 67.202 (moot court)
Time: 12.30-13.30
Abstract
One month ago, in Kennedy v Louisiana, the United States Supreme Court held that the Eighth Amendment to the US Constitution prohibited imposing the death penalty for the crime of raping a child. In holding that the death penalty for child rape was 'cruel and unusual punishment', the Court purported to rely upon "objective indicia" of a social consensus against imposing the death penalty for this offence. I shall argue that the objectivity of the indicia relied upon is largely illusory: the result rested largely on the personal moral views of the Supreme Court justices, a very uncertain foundation indeed. The Kennedy case is symptomatic of the challenge posed by judicial review of legislation under a written Bill of Rights, where such rights will often involve a moral standard: how do we balance the sometimes competing values of fundamental rights and evolving moral values with democratic ideals and the rule of law?
Bio-note
Professor Farrell completed his undergraduate degree and law degree at the University of Wollongong before receiving a Fulbright Award to attend Harvard Law School, where he completed his LL.M. After working as a Judge's Associate on the Massachusetts Appeals Court, he entered the Law and Philosophy Program at the University of Texas. He is currently an Assistant Professor at the University of Texas School of Law.
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