Response: Setting the Bar Too High
posted by University of Pennsylvania Law Review
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Frank I. Michelman responds to Youngjae Lee’s International Consensus as Persuasive Authority in the Eighth Amendment, 156 U. Pa. L. Rev. 63 (2007).
Professor Michelman, in his Response, Setting the Bar Too High, critically examines Professor Lee’s attempt to establish “the negligible epistemic value . . . [of a] unanimous world-wide rejection of the death penalty for juveniles.” Professor Michelman supports Justice Kennedy’s reference in Roper v. Simmons to an international consensus against capital punishment for juveniles because while he admits that many countries “are surely not relevantly like-minded with us . . . some of them surely are.” Professor Michelman is confident that “the probability is strong that the number of the world’s relevantly like-minded societies . . . is large enough to sustain the instructiveness for us of the external world’s unanimous rejection of the juvenile death penalty.” Moreover, he argues that “however true it . . . is that any randomly selected country in the worldwide bunch ‘may’ think vastly differently than we do about the severity of death, . . . not a single one of them dissents from the flat rejection of death as a fitting punishment for juveniles.” Consequently, he concludes that “[t]he presumption of epistemic value in the face of worldwide unanimity holds.”
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March 7, 2008 at 5:02 pm
Posted in: Law Rev (Penn), Law Rev Forum
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