In the discussion that follows, I explore the evolution of the "evolving standards" doctrine to make a point about its legitimacy and Supreme Court decisionmaking under the Cruel and Unusual Punishments Clause more generally. In Part I, I trace the origins of the doctrine to its present state. In Part II, I turn to lessons learned from the evolution of "evolving standards," questioning the textual defense of the doctrine and the constraining power of law itself. I conclude that while the "evolving standards" doctrine is problematic, it is not the crux of the problem. Supreme Court decisionmaking in the death penalty arena will reflect "evolving standards of decency" whether the doctrine says so or not.
Corinna Barrett Lain, Lessons Learned from the Evolution of Evolving Standards, 4 Charleston L. Rev. 661 (2010)