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A Constitutional Right To Discovery? Creating And Reinforcing Due Process Norms Through The Procedural Laboratory Of Arbitration, Imre Stephen Szalai
A Constitutional Right To Discovery? Creating And Reinforcing Due Process Norms Through The Procedural Laboratory Of Arbitration, Imre Stephen Szalai
Pepperdine Dispute Resolution Law Journal
This article explores an overlooked dynamic between arbitration and the more formal court system. As developed in more detail below, this article's thesis is that arbitration can help define and reinforce due process norms applicable in court, and a due process-like norm regarding discovery is beginning to develop. Courts often review arbitration agreements for fairness, and through this judicial review, courts have developed a body of law discussing and defining whether certain procedures (or the lack thereof) violate fairness norms in connection with the resolution of a particular dispute. Through this body of law exploring procedural fairness, one can identify …
The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply
The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply
Pepperdine Law Review
This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …
Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin
Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin
Pepperdine Law Review
The article focuses on role of the U.S. courts in confronting religious laws in dispute resolution of various cases of domestic relations, contracts, and torts. Topics discussed include role of secular courts in maintaining constitutional balance between the free exercise and establishment clauses, constitutional challenges faced by religious adherents, and importance of legal pluralism in the U.S.
California Year In Review: 2013 Special Education Alj Decisions, Ruth Colker
California Year In Review: 2013 Special Education Alj Decisions, Ruth Colker
Journal of the National Association of Administrative Law Judiciary
This article reviews 74 special education cases decided by California ALJs between January 1, 2013 and December 11, 2013. The author concludes that the ALJs provided stingy relief even when students prevailed, there was often unsuccessful litigation on behalf of a student following the termination of a consent decree or court order, many of the cases reflected negative attitudes towards the mothers of the student, and school districts often preferred more restrictive placements than the parent/student. Not surprisingly, students faced very unfavorable outcomes when they were not represented by a lawyer.
Resolving The Alj Quandary, Kent Barnett
Resolving The Alj Quandary, Kent Barnett
Journal of the National Association of Administrative Law Judiciary
Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …
Privacy, Jed Rubenfeld
Privacy, Jed Rubenfeld
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Due Process In A Nutshell, Arthur Markewich
Due Process In A Nutshell, Arthur Markewich
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Due Process In Unemployment Insurance Adjudication: Overview Of The Unemployment Insurance System, Frank J. Barbaro
Due Process In Unemployment Insurance Adjudication: Overview Of The Unemployment Insurance System, Frank J. Barbaro
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Striving For Efficiency In Administrative Litigation: North Carolina's Office Of Administrative Hearings, Julian Mann Iii
Striving For Efficiency In Administrative Litigation: North Carolina's Office Of Administrative Hearings, Julian Mann Iii
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Active Administrative Law Judge: Is There Harm In An Alj Asking?, Allen E. Shoenberger
The Active Administrative Law Judge: Is There Harm In An Alj Asking?, Allen E. Shoenberger
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Striking A Balance: The Conflict Between Safety And Due Process Rights - The Practical Implications Of Zadvydas V. Davis, Alicia Brown
Striking A Balance: The Conflict Between Safety And Due Process Rights - The Practical Implications Of Zadvydas V. Davis, Alicia Brown
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Breaking Terror's Bank Without Breaking The Law: A Comment On The Usa Patriot Act And The United States Financial War On Terrorism , Carrie L. Folendorf
Breaking Terror's Bank Without Breaking The Law: A Comment On The Usa Patriot Act And The United States Financial War On Terrorism , Carrie L. Folendorf
Journal of the National Association of Administrative Law Judiciary
This comment will discuss the effect of abandoning our Constitution in times of crisis by discussing how Executive Order 13,224 and the USA PATRIOT Act infringe upon our fundamental First Amendment freedoms of association, and how they violate the Due Process Clause of the Fifth Amendment by withholding notice and the opportunity to be heard. Part II will outline legislation which demonstrates how the United States has historically dealt with freezing the assets of designated terrorists, and will include a discussion of the provisions in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the USA PATRIOT Act …
Due Process; A Detached Judge; And Enemy Combatants, Julian Mann Iii
Due Process; A Detached Judge; And Enemy Combatants, Julian Mann Iii
Journal of the National Association of Administrative Law Judiciary
In the landmark administrative law decision of Goldberg v. Kelly, Justice Brennan stated that an “impartial decision maker is essential” to procedural due process. As a corollary, in the more recent decision of Hamdi v. Rumsfeld, Justice O'Connor stated that “due process requires a neutral and a detached judge in the first instance.” Thus, the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution require that the essential element of neutrality remain an integral part of any administrative hearing. There can be no departure from this fundamental guarantee of constitutional due process for the administrative hearings …
Mistreating A Symptom: The Legitimizing Of Mandatory, Indefinite Commitment Of Insanity Acquittees - Jones V. United States, Paul S. Avilla
Mistreating A Symptom: The Legitimizing Of Mandatory, Indefinite Commitment Of Insanity Acquittees - Jones V. United States, Paul S. Avilla
Pepperdine Law Review
At the end of the 1982 term, in Jones v. United States, the United States Supreme Court upheld a District of Columbia statute requiring the automatic and indefinite commitment of persons acquitted by reason of insanity. While under the D.C. statute the acquittee is periodically given the opportunity to gain release, the practice of involuntarily confining someone who has been acquitted raises serious due process and equal protection issues. This note examines the Court's analysis of these issues, focusing on a comparison of the elements necessary for an insanity defense with the showing required by the due process clause for …
Condominium Associations: Living Under The Due Process Shadow, Brian L. Weakland
Condominium Associations: Living Under The Due Process Shadow, Brian L. Weakland
Pepperdine Law Review
No abstract provided.
The Unwed Father's Custody Claim In California: When Does The Parental Preference Doctrine Apply?, Jeffrey S. Boyd
The Unwed Father's Custody Claim In California: When Does The Parental Preference Doctrine Apply?, Jeffrey S. Boyd
Pepperdine Law Review
No abstract provided.
The Code And The Constitution: Fifth Amendment Limits On The Debtor's Discharge In Bankruptcy, Nicholas A. Franke
The Code And The Constitution: Fifth Amendment Limits On The Debtor's Discharge In Bankruptcy, Nicholas A. Franke
Pepperdine Law Review
No abstract provided.
The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii
The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii
Pepperdine Law Review
No abstract provided.
The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky
The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky
Pepperdine Dispute Resolution Law Journal
Part I of this article provides a brief overview of the reasoning behind the limited judicial review of an arbitral award. Part II describes the state action doctrine and explains how several courts have used the doctrine in order to apply due process protection to proceedings involving private actors. In particular, this section discusses several significant decisions that involve the issue of whether a court's confirmation of an arbitrator's award of punitive damages creates state action and requires the application of constitutional protections such as due process. This Note concludes that due to a leading decision by the Eleventh Circuit, …