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winter 2025
As Americans become accustomed to seeing a public justice system via televised trials and streaming audio of U.S. Supreme Court arguments, the part that comes after—punishing those found guilty of crimes—has largely disappeared from view. This lack of public engagement with how we punish fellow citizens is at the root of Professor Erin Braatz’s article, “Democratizing the Eighth Amendment,” in Villanova Law Review (May 2023).
The paper looks at how “the extreme privatization and isolation of penal practices beginning in the mid-20th century prevents the public from evaluating whether prison practices in the United States violate the Eighth Amendment’s prohibition on cruel and unusual punishment” and “stymies the process through which standards of decency might evolve.”
The amendment prohibits “cruel and unusual punishments” without spelling out what that means; the Supreme Court’s 1958 Trop v. Dulles decision used “evolving standards of decency” to identify acceptable punishments. “Over time, people’s sense of what is appropriate changes and shifts,” says Braatz. “If we started whipping people in Boston Common today, we’d agree that’s not an appropriate way to punish people. But if you don’t see a punishment, you can’t decide if it’s cruel and unusual.” She argues that more public engagement with how the government punishes can help motivate legislative and public policy updates to the “cruel and unusual” standard.
Braatz, who teaches criminal law, started her legal career with a focus on fighting the death penalty and has come to see that beyond litigation, legislation and public awareness are key to justice reform.
“Recent Supreme Court cases have ignored the notion of evolving standards of decency, so I want to encourage people to think about and engage with it rather than rely on the Court,” she says. “We’re at a moment when people from different places on the political spectrum are recognizing the need to place meaningful constraints on what the government can do in the area of punishment.” –Brian Glaser
Democratizing the Eighth Amendment
Photograph by Michael J. Clarke
Professor Erin Braatz
The history of social change in the U.S. tends to be signposted by major legislation or pivotal Supreme Court decisions. But in Professor Adam Eckart’s paper “In Business We Trust,” published in 2023 by the Wake Forest Journal of Business and Intellectual Property Law, he examines the ways in which corporations can be at the forefront of advancing social movements—and why they can often move more quickly and nimbly than government bodies.
While his research illustrates how corporations can lead societal shifts, Eckart has also experienced this firsthand: As a gay man in Massachusetts, he witnessed how his own law firm stepped in to address inequities in marriage benefits well before federal law caught up. He was able to marry his husband under state law, but the marriage wasn’t federally recognized until the landmark Windsor and Obergefell decisions. “I paid more in taxes than the straight married person next to me, because I couldn’t take advantage of the federal marriage deductions,” he says. His law firm took steps to address the financial disparity by compensating for the tax inequity before the Supreme Court stepped in.
“In Business We Trust” provides noteworthy examples of business decisions driven by a moral calculus, including the NBA opting to relocate its 2017 All-Star game out of North Carolina unless the state made changes to an anti-trans bathroom bill, and Dick’s Sporting Goods exiting the assault-rifle business after the school shootings at Sandy Hook Elementary School in Newtown, Connecticut, and at Marjory Stoneman Douglas High School in Parkland, Florida. “Dick’s said, ‘We don’t think this is right anymore,’” says Eckart. “They faced some initial backlash, but in the long run their sales increased in their stores, which says to shareholders that they can take a stand and still do well financially.”
Eckart notes that in an era when it’s difficult for legislatures to take action, lawyers who work with corporations can be on the front lines of social change. “There are opportunities to create change through private contracts or policies from companies,” he says. “If the corporation really believes people should have a certain right, they can provide that right, and they can help make the world a better place.”
–Brian Glaser
In Business We Trust
Professor Adam Eckart
In Professor Ragini Shah’s role as head of Suffolk Law’s Immigrant Justice Clinic, she hears many stories from migrants coming to the U.S. from Mexico seeking jobs, stability, and other improvements in their lives. But her new book, Constructed Movements: Extraction and Resistance in Mexican Migrant Communities (University of California Press, November 2024), focuses on topics she wasn’t hearing about as she and her students helped clients file legal documents: the stories of their communities in Mexico and the economic structures that frame their journeys.
“I was interested in trying to understand migration from the perspective of people who experienced it,” Shah says. “What is the decision-making process when you’re in Mexico? Why choose the U.S.? Why come without documentation? What happens to family members left behind?”
The book tells stories from Mexican migrant communities in the states of Oaxaca, Tabasco, and Tlaxcala and the city of Puebla, focusing on both the people who travel to the U.S. from Mexico and the people who stay behind. The narratives don’t draw straight, one-directional lines; these communities also include people who migrate to the U.S. to earn money, and return to Mexico to build farming collectives, make products to sell, and build sustainable community organizations.
Publishing this book in 2024 inevitably calls up hot-button political issues around migration, but Shah doesn’t see Constructed Movements as anchored to this particular moment. “A lot of what these people are facing is pretty timeless,” she says. “U.S. migration from Mexico is part of colonial extraction—like the oil, copper, or strawberries the U.S. has extracted, people from Mexico are used to serve our needs, and have been doing so for decades. The rhetoric has shifted somewhat, but this is part of a larger structure.”
Learning about these communities and structures has informed Shah’s point of view on the contemporary politics of migration and how they might more productively intersect with an economy that depends on an immigrant workforce. “We need to look beyond border security, beyond apparatuses to ensnare migrants,” she says. “Instead, what does it look like to acknowledge our dependence on migrants, to welcome and integrate people, and give them dignity in their workplaces and their lives?” –Brian Glaser
Constructed Movements
Professor Ragini Shah
Dick’s Sporting Goods exited the assault-rifle business in response to school shootings.
