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Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal

Lawrence Rosenthal

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …

The Insanity Of Mens Rea: Due Process And The Abolition Of The Insanity Defense, Jean K. Phillips, Rebecca E. Woodman

Jean K Phillips

The Insanity of the Mens Rea Model:

Due Process and the Abolition of the Insanity Defense.

Jean K. Gilles Phillips and Rebecca E. Woodman

Abstract

In the last 15 years a flurry of legislative activity has taken place as states have attempted to redefine the insanity defense. This article focuses on those states who chose not just to refine the definition of insanity, but to completely abolish it as an affirmative defense.

During the 2006 Supreme Court term many believed that the Court would answer the question of whether the Due Process Clause protects the right of the accused to …

Reforming Eyewitness Identification Procedures Under The Fourth Amendment, Sarah Anne Mourer

Sarah Mourer

This article proposes that the high probability of misidentification associated with unregulated eyewitness identification procedures requires Fourth Amendment protections. This risk of misidentification amounts to a significant privacy intrusion under the Fourth Amendment. The physical aspect of a lineup is recognized by courts as a privacy invasion pursuant to the Fourth Amendment. Courts, such as Davis. v. Mississippi, also suggest that the lack of reliability of pretrial investigatory procedures requires heightened Fourth Amendment protections. This article also examines the fact that a procedural due process analysis of eyewitness identifications alone fails to protect citizens from misidentification and should not be …

Adult Rights As The Achilles’ Heel Of The Best Interests Standard: Lessons In Family Law From Across The Pond, Margaret Ryznar

Margaret Ryznar

Family law litigants have long searched for permutations of constitutional principles that gain access to federal courts. Typically, such litigants have been most successful with due process and equal protection arguments—even at the expense of the venerable “best interests of the child” standard in child-related cases. One legal system currently wrestling with this familiar clash between the interests of children and adults is that of England—where adults are armed with the rights granted by the Human Rights Act 1998, while children’s interests are given preference in an earlier act, the Children Act 1989. England’s strategy in dealing with this conflict …

Services For Private School Students Under The Individuals With Disabilities Education Improvement Act: Issues Of Statutory Entitlement, Religious Liberty, And Procedural Regularity, Mark C. Weber

Mark C. Weber

Government support for private schooling has been a topic of public discussion from the beginning of the administration of President George Bush. The Individuals with Disabilities Education Improvement Act of 2004 (“Improvement Act”) amends the Individuals with Disabilities Education Act (“IDEA”) with regard to (among other things) publicly funded services for children with disabilities who attend private schools. This Article describes the private school student provisions of the new law, demonstrating that the Improvement Act represents continuity in the field of special education services for children in private education. The Article then takes up three issues regarding services for private …

Spreadsheet Of Takings And Due Process Cases At The U.S. Supreme Court, 1871-2005, Jamison E. Colburn

Jamison E. Colburn

In this spreadsheet, I collect the major takings and real property due process precedents at the Supreme Court (I've intentionally omitted cases that do not resolve a substantive claim of either takings or DP but rather only cite or apply those provisions tangentially). The cases are categorized by: (1) the Supreme Court's jurisdiction; (2) whether a DP claim was brought and whether it was won; (3) whether a takings claim was brought and whether it was won; (4) the character of the law challenged; (5) the character of the property interests in question; and (6) the result at the Court, …