Objective Indicia and Juvenile Life Without Parole

Ian P. Farrell[1]

Introduction

In March, the Supreme Court heard oral arguments in Miller v. Alabama[2] and Arkansas v. Jackson.[3]  Both cases involved fourteen-year-old defendants convicted of capital murder and given the mandatory sentence of life without the possibility of parole, after being transferred out of the juvenile system and tried as adults.[4]  The issue before the Court in each case is whether this sentence of life without the possibility of parole, when imposed upon a juvenile convicted of homicide, violates the Eighth Amendment’s Cruel and Unusual Punishment Clause.[5]

The Supreme Court has confirmed its methodological framework for determining whether to impose a categorical rule prohibiting a punishment practice in a series of decisions over the past decade.[6]  This methodology has been subjected to criticism,[7] several of which are evident in its application to Miller and Jackson. In this short article, I will focus on one of these problems: the Court’s use of “objective indicia” to measure the contemporary moral standards that inform the application of “cruel and unusual.”  It is not my purpose here to predict the outcome of the cases, nor to suggest what the outcome ought to be. Rather, my purpose is to describe one of the difficulties in employing the Court’s “objective indicia” analysis, a method that remains troubling regardless of whether it produces a preferred outcome in any particular case.

Click to read more ...

HEY YOU – OUTTA THE RISK POOL

Richard A. Booth[1]

It is a curse to live in interesting times. Right now, the interesting question before the Supreme Court is whether Congress has the power to compel the purchase of health insurance under the individual mandate of the Patient Protection and Affordable Care Act of 2010 (PPACA) – better known as ObamaCare. It is an interesting question because it is difficult to think of another situation in which Congress has sought to regulate inaction as commerce. But it is the wrong question. The real question is whether Congress may regulate an existing market that is deeply flawed – a market in which the failure of some to buy insurance forces insurance companies to adopt strategies that exclude others from the market altogether. When the question is so framed, the answer becomes quite clear. Congress does indeed have the power to impose the individual mandate under the commerce clause and maybe even under the equal protection clause.[2]

Click to read more ...

Therasense, Inc. v. Becton, Dickinson & Company: New Standards for Proving Inequitable Conduct

Daniel Staley and Bruce Dahl[1]

On May 25, 2011, in Therasense, Inc. v. Becton, Dickinson & Co.,[2] an en banc Court of Appeals for the Federal Circuit tightened the materiality and intent standards for proving inequitable conduct as a defense against patent infringement. The court raised the standard for materiality to what is known as the “but-for-plus” standard. The court also held that to prevail on a claim of inequitable conduct the accused infringer must prove that the patentee acted with “specific intent to deceive” the Patent and Trademark Office (“Patent Office”). Moreover, the court emphasized that intent and materiality are separate requirements—intent may not be inferred from materiality. The following article briefly discusses the evolution of the inequitable conduct standards and the new tightened standards set forth in Therasense.

Click to read more ...