Volume 97

PARALLEL pathways are pervasive. Blood flows from the heart to the brain through three separate arteries; in the event of a blockage in one artery, blood is routed through the other two. We have two kidneys but need only one. If I want to drive from Champaign to Charlottesville, I can go by way of I-70 or I-80, or I can explore the blue highways. If I want to get from Champaign to Chicago, I can fly, take the bus, drive, or take the train. If I drive to Chicago and get caught in traffic on the Dan Ryan expressway, the side streets are always an option. And so on.

Parallel pathways can operate simultaneously or non-simultaneously. Simultaneous pathways are generally preferable since they provide an increased margin of safety from real-time redundancy. Both kidneys work continuously; they do not alternate or take vacations. The same goes for eyes and ears. The existence of multiple modes of transit between Champaign and Chicago means I can almost always get there, one way or another. The Boeing 777 can fly on only one engine, but both engines are used simultaneously. If you want to be safe, a “belt and suspenders” approach is better than either one alone.

What, if anything, do parallel pathways have to do with the Patient Protection and Affordable Care Act (“PPACA”), apart from the coincidental usage of two “Ps” in each? In their insightful and tightly reasoned article, Professors Monahan and Schwarcz work their way through a series of interlocking provisions in PPACA and explain how they make it possible for employers to “dump” high-risk employees onto the state-run exchanges scheduled to commence operations in 2014.

Stated less pejoratively, PPACA makes it possible for employed workers to obtain health insurance coverage through either their employer or an insurance exchange, with differing financial (and potentially health) consequences depending on whether the employer is offering affordable coverage (or coverage at all) and the income and health status of the employee. This parallel pathway expands the options through which employees can get to their desired (and/or mandated) destination—having health insurance.

Professor John Stinneford follows his initial article concerning the original meaning of the Eighth Amendment with an excellent article in the Virginia Law Review, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause. In this latest piece, Stinneford argues that the original meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause includes not only a prohibition against barbaric punishments (defined as ones without “long usage”), but also against excessive or “disproportionate” punishments. Stinneford then advocates rethinking the Supreme Court’s Eighth Amendment evolving standards of decency jurisprudence to center the “cruel” inquiry on whether the punishment at issue is “proportionate,” in a retributive sense, in light of prior punishment practices.

Stinneford’s article is important both in that it legitimizes, from an originalist perspective, the use of proportionality in the application of the Eighth Amendment, and in that it offers a proposal for restructuring the application of the Eighth Amendment around this principle. In doing so, Stinneford uses his historical interpretation of the Eighth Amendment to argue for a new approach to applying proportionality in a solely retributive manner.

In this brief Response, I raise two possible objections to Stinneford’s analysis. First, Stinneford insists that proportionality must be solely a retributive concept for Eighth Amendment purposes, both as a matter of original interpretation and sound application. While retribution is certainly part of the “proportionality” analysis, I believe that utilitarian justifications of punishment are also relevant to the concept of proportionality. As explained below, this is true both as a matter of original interpretation and perhaps more importantly as a reasonable basis for the Court’s current application of the Eighth Amendment.

PPACA in Theory and Practice: The Perils of Parallelism

Separating Retribution from Proportionality: A Response to Stinneford