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Articles 1 - 6 of 6
Full-Text Articles in Law
Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo
Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo
All Faculty Scholarship
The past year has witnessed an upsurge of international interest in due process in antitrust enforcement, reflected in two new comparative studies and International Competition Network’s (ICN’s) May 2019 adoption of its Recommended Practices for Investigative Process and Framework for Competition Agency Procedures and the Organization for Economic Cooperation and Development (OECD) Competition Committee’s discussion of the Draft Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement in June 2019. This article reviews those developments, traces key differences among them, and looks ahead to what comes next.
How To Decrease The Immigration Backlog: Expand Representation And End Unnecessary Detention, Kara A. Naseef
How To Decrease The Immigration Backlog: Expand Representation And End Unnecessary Detention, Kara A. Naseef
University of Michigan Journal of Law Reform
This Note recommends federal policy reform and local implementation in order to decrease the immigration backlog and protect the rights of non-citizens in immigration proceedings. Although non-citizens hold many of the fundamental rights and freedoms enumerated in the Constitution, several core rights— including due process and the right to counsel—are not rigorously upheld in the context of immigration proceeding. By carefully regulating expanded access to representation and ending unnecessary immigration detention, the Executive Office of Immigration Review and Congress will ensure the swift administration of justice and protect non-citizens under the federal government’s jurisdiction.
Does The Evolving Concept Of Due Process In Obergefell Justify Judicial Regulation Of Greenhouse Gases And Climate Change?: Juliana V. United States, Bradford Mank
Faculty Articles and Other Publications
Justice Kennedy’s Obergefell opinion, which held that same sex marriage is a fundamental right under the Constitution’s due process clause, reasoned that the principles of substantive due process may evolve because of changing societal views of what constitutes “liberty” under the clause, and that judges may recognize new liberty rights in light of their “reasoned judgement.” In Juliana v. United States, Judge Aiken used her “reasoned judgement” to conclude that evolving principles of substantive due process in the Obergefell decision allowed the court to find that the plaintiffs were entitled to a liberty right to a stable climate system capable …
Due Process For Article Iii—Rethinking Murray's Lessee, Kent H. Barnett
Due Process For Article Iii—Rethinking Murray's Lessee, Kent H. Barnett
Scholarly Works
The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private …
Some Kind Of Hearing Officer, Kent H. Barnett
Some Kind Of Hearing Officer, Kent H. Barnett
Scholarly Works
In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts (and agencies) should respond when the Due Process Clause required, in the Supreme Court’s exceedingly vague words, “some kind of hearing.” That phrase led to the familiar (if unhelpful) Mathews v. Eldridge balancing test, in which courts weigh three factors to determine how much process or formality is due. But the Supreme Court has never applied Mathews to another, often ignored facet of due process—the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not …
Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland
Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland
All Faculty Scholarship
Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the …