Law Commons^™

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

The Right To Migrate: A Human Rights Response To Immigration Restrictionism In Argentina, David C. Baluarte

Scholarly Articles

Within days of President Donald Trump’s 2017 Executive Orders on border security and immigration enforcement, President Mauricio Macri of Argentina issued a Decree to address what he declared was an urgent problem of immigrant criminality. The timing of the two Presidents’ actions triggered concerns that U.S.-style restrictionist immigration regulation was spreading to South America, a continent that has taken progressive steps towards recognizing the human rights of migrants in recent years. Until Macri’s 2017 Decree, Argentina was considered a leader in this regard, with its 2004 immigration law that boldly codified a “right to migrate” and included robust substantive and …

Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation …

Contorting Common Article 3, Michael A. Newton

Vanderbilt Law School Faculty Publications

This short Essay describes the circularity of support between the ICRC and the Pre-Trial Chambers of the ICC. Its successive sections describe the problematic potential of extending the substantive coverage of Common Article 3 to encompass members of the same armed group who commit criminal acts against one another.' In particular, the Revised Commentary fails to address the due process ramifications of an enlarged Common Article 3, even as the development of the text documented by the readily available negotiating record warrants an alternative understanding. Lastly, the ICRC position could indicate a radical shift in the very design of the …

Newsroom: Closing Guantanamo Isn't Enough 03-14-2016, Jared Goldstein

Life of the Law School (1993- )

No abstract provided.

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Journal Articles

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

Education Rights And The New Due Process, Areto A. Imoukhuede

Faculty Scholarship

This Article argues for a human dignity-based, due process clause analysis to recognize the fundamental duty of government to provide high quality, public education. Access to public education is a fundamental duty, or positive fundamental right because education is a basic human need and a constituent part of all democratic rights.

Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard

All Faculty Scholarship

The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held …

Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.

Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand

Articles

In their article, Forum Non Conveniens and The Enforcement of Foreign Judgments, Christopher Whytock and Cassandra Burke Robertson provide a wonderful ride through the landscape of the law of both forum non convenience and judgments recognition and enforcement. They explain doctrinal development and current case law clearly and efficiently, in a manner that educates, but does not overburden, the reader. Based upon that explanation, they then provide an analysis of both areas of the law and offer suggestions for change. Those suggestions, they tell us, are necessary to close the “transnational access-to-justice gap” that results from apparent differences between rules …

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

All Faculty Scholarship

This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how …

Fundamental Norms, International Law, And The Extraterritorial Constitution, Jules Lobel

Articles

The Supreme Court, in Boumediene v. Bush, decisively rejected the Bush Administration's argument that the Constitution does not apply to aliens detained by the United States government abroad. However, the functional, practicality focused test articulated in Boumediene to determine when the constitution applies extraterritorially is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court’s opinion. This Article seeks to reintegrate Boumediene's fundamental norms jurisprudence into its functional test, arguing that the functional test for extraterritorial application of habeas rights should be informed by fundamental norms of international law. The Article argues that utilizing international law’s …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

Prolonged Solitary Confinement And The Constitution, Jules Lobel

Articles

This Article will address whether the increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the U.S. Supreme Court has noted, international jurisprudence can be helpful in determining the scope and meaning of broad terms in our Constitution such as “cruel and unusual punishments” or “due process,” as those terms ought to be understood in …

Without Limitation: 'Groundhog Day' For Incompetent Defendants, J. Amy Dillard

All Faculty Scholarship

This Article offers a brief overview of the standards for determining competency to stand trial. After examining the seminal case of Jackson v. Indiana, which held that the indefinite pre-trial detention of incompetent defendants violates due process, this Article argues that Virginia Code § 19.2-169.3, like statutes in twenty other states, violates a defendant's right to substantive due process, including the right to be free from forcible medication. This Article proposes legislation that will make the process constitutional, while addressing the concerns about the release of dangerous individuals held by the prosecutors and the community.

Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff

Law Faculty Publications

No abstract provided.

The Land Of The Free: Human Rights Violations At Immigration Detention Facilities In America, Caitlin J. Mitchel

LLM Theses and Essays

In America today, aliens who commit even minor visa violations can be detained in one of many immigration detention facilities throughout the U.S. These detainees may be transferred to a facility far away from their homes, families, and attorneys. While imprisoned in these detention facilities, some detainees are treated as and housed with criminals. Their substantive and procedural rights are limited and their human rights are violated. The U.S. laws that should protect them are the very laws that strip them of their rights to court proceedings, challenges of decisions regarding detention, and judicial review. By issuing substantial reservations, declarations, …

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.