Law Commons^™

In Defense Of Idea Due Process, Mark C. Weber

Mark C. Weber

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Barry Cushman

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …

Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal

Jennifer Daskal

This Article exposes the ways in which non-custodial, pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples – terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, none of the criminal law procedural protections apply. They have exploded largely unchecked – subject to little more than bare rationality review and negligible procedural protections – and without any coherent theory as …

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Rodger Citron

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

Amicus Brief: State V. Glover (Maine Supreme Judicial Court), Adam Lamparello, Charles Maclean

Adam Lamparello

When law enforcement seeks to obtain a warrantless, pre-arrest DNA sample from an individual, that individual has the right to say “No.” If silence is to become a “badge of guilt,” then the right to silence—under the United States and Maine Constitutions—might become a thing of the past. Allowing jurors to infer consciousness of guilt from a pre-arrest DNA sample violates the Fourth Amendment to the United States and Maine Constitutions.

Defenseless Self-Defense: An Essay On Goldberg And Zipursky's Civil Recourse Defended, Alan Calnan

Alan Calnan

In a recent symposium published by the Indiana Law Journal, Professors John C.P. Goldberg and Benjamin C. Zipursky offer a spirited defense of their theory of civil recourse, which sees the tort system exclusively as a means of empowering victims of wrongs. This essay assails that defense, finding it curiously defenseless in three related respects. First, civil recourse’s key tenets are particularly vulnerable to criticism because they are quietly reductive, inscrutably vague, and highly unstable. Second, even in its most coherent form, civil recourse theory literally lacks any meaningful explanation of the defensive rights at play within the tort system. …

Efectos De La Constitucionalización Del Arbitraje, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

Se analiza aquí cuáles son los efectos de que la Carta suprema del Ecuador haya reconocido la figura de los medios alternativos de solución de conflictos, entre los que se encuentra el arbitraje. Primero se relata la historia de esta constitucionalización (cap. I), para luego revisar cómo se acoplan estos medios al principio constitucional de unidad jurisdiccional (cap. II). En los capítulos III a VII se analiza la naturaleza de estos medios, que ha de considerarse como el núcleo esencial del derecho constitucional a usar estos medios. Los capítulos VIII y IX analizan otros efectos adicionales: la garantía de inderogabilidad …

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Robert L Tsai

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi

Mark L Noferi

When a Department of Homeland Security officer mandatorily detains a green card holder without bail pending his removal proceedings, for a minor crime committed perhaps long ago, the immigrant’s life takes a drastic turn. If he contests his case, he likely will remain incarcerated in substandard conditions for months or years, often longer than for his original crime, and be unable to acquire a lawyer, access family whom might assist, or access key evidence or witnesses. In these circumstances, it is all but certain he will lose his deportation case, sometimes wrongfully, and be banished abroad from work, family, and …

Due Process Denied: Judicial Coercion In The Plea Bargaining Process, Richard Klein

Richard Daniel Klein

No abstract provided.

Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn

Richard Daniel Klein

No abstract provided.

Wrongful Conviction Claims Under Section 1983, Martin A. Schwartz, Robert W. Pratt

Martin A. Schwartz

No abstract provided.

Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Due Process And Fundamental Rights, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Section 1983 Litigation – Supreme Court Developments, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily …

Rethinking Immigration Detention, Anil Kalhan

Anil Kalhan

In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated - to the …

Codifying Caperton V. A.T. Massey Coal Co., Ronald Rotunda

Ronald D. Rotunda

Before Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266 (2009). due process mandated judicial disqualification in two basic situations: first, when the judge had a direct, personal, and substantial pecuniary interest in the case, or second, when the judge acted as judge, jury, prosecutor, and complaining witness, and there was no need for an instant response. Caperton adds a third category. Due process requires a judge to disqualify himself if a person who is not a party (but is a principal officer of a party) has made substantial independent expenditures to support the successful judicial candidate or …

Back To The Future: Discovery Cost Allocation And Modern Procedural Theory, Martin H. Redish, Colleen Mcnamara

Martin H Redish

It has long been established that as a general rule, discovery costs are to remain with the party from whom discovery has been sought. While courts have authority to "shift" costs in an individual instance, the presumption against such an alteration in traditional practice is quite strong. Yet at no point did the drafters of the original Federal Rules of Civil Procedure ever make an explicit decision to allocate discovery costs in this manner. Nor, apparently, did they (or anyone since) ever explain why such an allocation choice is to be made in the first place. As a result, our …

Procedural Due Process In Pennsylvania: How The Commonwealth Court Clarified An Ambiguous Concept, John L. Gedid

John L. Gedid

No abstract provided.

‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson

Stephen E Henderson

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …

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 Little Word "Due", Andrew T. Hyman

Andrew T. Hyman

The meaning of the Due Process Clause is investigated, with special emphasis on the little word "due." The author concludes that the text and structure of the Constitution --- as well as the intentions of the framers --- strongly support the view of the late Justice Hugo Black regarding the meaning of this Clause in the Fifth and Fourteenth Amendments. In the Constitution, due process means process due according to the law of the land, and a statute is part of the law of the land if it does not violate or undermine any other provision of the Constitution. Thus, …

Protecting The Right To Effective Assistance Of Capital Postconviction Counsel: The Scope Of The Constitutional Obligation To Monitor Counsel Performance, Celestine Richards Mcconville

Celestine Richards McConville

This article is an outgrowth of an idea developed by the author in a prior article, The Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel, 2003 Wisconsin Law Review 31. The prior article argued that the government's decision to provide capital postconviction counsel triggers a due process-based obligation to make the right to counsel meaningful, which essentially means that the right to counsel must include the right to effective assistance of counsel. In the postconviction context, the effectiveness guarantee requires that the government must monitor counsel's performance to ensure, to the extent …

The Right To Effective Assistance Of Capital Postconviction Counsel: Constitutional Implications Of Statutory Grants Of Capital Counsel, Celestine Richards Mcconville

Celestine Richards McConville

The problem of incompetent counsel in capital cases is hardly a secret. Much of the attention, however, has focused on incompetent capital trial counsel. This article, by contrast, addresses the problem of incompetent capital counsel at the state and federal postconviction levels. Like the trial and direct review phases, the capital postconviction phase is critical to an accurate and reliable determination of guilt and death-eligibility. Thus, competent counsel is just as necessary during capital postconviction proceedings as it is during capital trial and direct review proceedings.

The Supreme Court, however, has made clear that there is no constitutional right to …

Deshaney’S Legacy In Foster Care And Public School Settings, Mary Kate Kearney

Mary Kate Kearney

No abstract provided.

In Search Of Clemency Procedures We Can Live With: What Process Is Due In Capital Clemency Proceedings After Ohio Adult Parole Authority V. Woodard?, Brian S. Clarke

Brian S. Clarke

The United States Supreme Court has denied certiorari for the final time. All state and federal appeals have been exhausted. The execution date has been set. There is only one thing that can save the death row inmate from the ultimate punishment: the proverbial call from the governor and a grant of executive clemency.

This scene, although a veritable Hollywood cliche, is being played out in prisons across America with increasing frequency. As of July 1, 1998, there were 3,474 men and women on death row in America. In 1996, with the passage of the Anti-Terrorism and Effective Death Penalty …