“The Administrative Law of the Eighth (and Sixth) Amendment”

The title of this post is the title of this book chapter authored by Richard Bierschbach and recently posted to SSRN.  Here is its abstract:

On the surface, few similarities exist between modern administrative law and the modern constitutional law of sentencing.  Administrative law is preoccupied with structural constitutional law, statutory interpretation, and regulatory policy.  Constitutional sentencing law is overwhelmingly concerned with individual constitutional rights, blame, and punishment.  Scholars thus rarely draw connections between the two.

This Chapter — written for a forthcoming volume on “The Eighth Amendment and Its Future in a New Age of Punishment” — does just that.  Administrative law and the constitutional law of sentencing can be seen as sharing a fundamental concern about the structure of decision-making: how to ensure that difficult, value-laden judgments best reflect and filter the viewpoints and concerns of those they affect.  Just as the institutional and procedural structure of administrative law evolved in large part to address issues of voice and perspective in the regulatory context, we might understand the arc of constitutional sentencing law over the last half-decade as slowly moving in a parallel direction.