Law Commons^™

Restriction Of Tort Remedies And The Constraints Of Due Process: The Right To An Adequate Remedy, Tracy A. Thomas

Akron Law Faculty Publications

In the recent proliferation of tort reform statutes, the dangerous clause of remedial jurisdiction stripping has sneaked into the law. Reminiscent of federal statutes in other areas of the law, these jurisdictional provisions strip courts of all power to award punitive or non-pecuniary damages in excess of legislative limits. Many states have acted to restrict frivolous claims and excessive recoveries by cabining “McTorts” and “runaway juries.” Regardless of the merits of these policy questions, the use of the simple expedient of remedial jurisdiction to accomplish these purposes raises significant concerns. By arbitrarily restricting an individual’s right to a meaningful remedy, …

Restriction Of Tort Remedies And The Constraints Of Due Process: The Right To An Adequate Remedy, Tracy A. Thomas

Tracy A. Thomas

In the recent proliferation of tort reform statutes, the dangerous clause of remedial jurisdiction stripping has sneaked into the law. Reminiscent of federal statutes in other areas of the law, these jurisdictional provisions strip courts of all power to award punitive or non-pecuniary damages in excess of legislative limits. Many states have acted to restrict frivolous claims and excessive recoveries by cabining “McTorts” and “runaway juries.” Regardless of the merits of these policy questions, the use of the simple expedient of remedial jurisdiction to accomplish these purposes raises significant concerns. By arbitrarily restricting an individual’s right to a meaningful remedy, …

U.S. Asylum Law Out Of Sync With International Obligations: Real Id Act, Victor P. White

San Diego International Law Journal

Focusing on defensive asylum applications, this Comment examines whether certain provisions of REAL ID violate due process and international obligations to asylum seekers. Part I situates REAL ID within the historical context of nearly a decade of restrictive U.S. immigration law and over two decades of Executive Orders aimed at deterring a mass exodus of asylum seekers from reaching U.S. shores. Part II provides an overview of the U.S. asylum system and argues that the system produces inconsistent and sometimes arbitrary results, indicating that segments of the system do not satisfy international obligations. Part III outlines three provisions of REAL …

Burkean Minimalism, Cass R. Sunstein

Michigan Law Review

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and …

The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins

Michigan Law Review

On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …

Military Commissions: Constitutional, Jurisdictional, And Due Process Requirements, Jordan J. Paust

International Law Studies

No abstract provided.

The Outer Limits Of Gang Injunctions, Scott E. Atkinson

Vanderbilt Law Review

Almost a decade ago, the California Supreme Court endorsed the use of public nuisance injunctions as a means to control street gangs. Public nuisance injunctions against gangs ("gang injunctions"), which result from civil suits filed by district or city attorneys, prohibit the nuisance conduct within a prescribed geographical area, focusing on the "turf' claimed by the gang. In People ex rel. Gallo v. Acuna, the California Supreme Court upheld an injunction against thirty-eight named members of a San Jose gang in a four square block area where none of the gang members lived. The court described the neighborhood as "an …

Originalism And Parking Tickets, Lawrence Rosenthal

ExpressO

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 …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

Rebalancing Section 512 To Protect Fair Users From Herds Of Mice-Trampling Elephants, Or A Little Due Process Is Not Such A Dangerous Thing, Malla Pollack

Malla Pollack

I agree with the basic concept of 17 U.S.C. § 512; to protect Internet functionality, ISPs should have robust safe harbors against liability for their subscribers' copyright infringement. However, the current details of the notice and take down system are both unfair to the general public and unnecessary to the economic health of the United States. I suggest a robust, statutorily established digital fair use right backed by a notice and take down procedure protecting fair users. At a minimum, use of a purchased music file on any of the purchaser's equipment should be fair use. Preferably, all personal non-commercial …

We Can Do Better: Anti-Homeless Ordinances As Violations Of State Substantive Due Process Law, Andrew J. Liese

Vanderbilt Law Review

In September of 2004, a group of local business owners and professionals in Nashville, Tennessee, together with the Nashville Downtown Partnership, a local downtown improvement organization, submitted a plan to the Metro Council that proposed making it illegal to panhandle in the busiest areas of the city. Advocates of the proposed legislation argued that panhandlers "harass tourists and customers and make the city less appealing." Opponents viewed the proposal as nothing more than an attempt to force the homeless out of the city. The Nashville plan is patterned after the measures that several major American cities-including Philadelphia, Denver, and Seattle-have …

The New Constitutional Right To Maintenance In The United States, John H. Ryskamp

ExpressO

The 2003, United States Supreme Court case of Lawrence v. Texas is not a maintenance case. It abolished laws against sodomy. In doing so, however, it overruled the case which prevented a right to maintenance in the United States. In the 1937 case of West Coast Hotel v. Parrish, the Supreme Court, although sustaining a minimum wage law, nevertheless did so on the sole basis of demoting liberty (supposed by the Court to forbid minimum wage laws) to an unenforceable interest. The notion of an unenforceable interest was part of the scrutiny regime established in West Coast Hotel. The regime …

Did You Happen To Notice That Lawrence V. Texas Overruled West Coast Hotel V. Parrish?, John H. Ryskamp

ExpressO

The article points out, for the first time, the way in which Lawrence v. Texas overruled West Coast Hotel v. Parrish. Lawrence's overruling of West Coast is the first step in the demise of the "minimum scrutiny" regime, which the Court established in West Coast in 1937.

Stretching The Fourteenth Amendment And Substantive Due Process: Another Close Call For 42 U.S.C. 1983, Brad K. Thoenen

Missouri Law Review

Forty years ago, Justice John Harlan noted that the United State Constitution "is not a panacea for every blot upon the public welfare, nor [is the] Court . . .a general haven for reform movements." Written during an era of judicial progressivism, Justice Harlan's words capture perfectly the essence of the Eighth Circuit's majority opinion in Terrell v. Larson, a recent substantive due process case from Minnesota. Substantive due process claims often tug at the heartstrings of our jurisprudence, and Terrell is certainly no exception. This Note will explore the legal foundations and policy implications of Terrell and attempt to …

Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal

ExpressO

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and …

The Bureaucratic Due Process Of Government Watch Lists, Peter M. Shane

ExpressO

Watch lists have become increasingly important tools for law enforcement and the protection of homeland security since the terrorist attacks of September 11, 2001,. These lists, however, pose dangers that innocent persons may be burdened either because they are included on such lists without justification or because they share a name with another individual who is appropriately listed. Our public law traditionally addresses this sort of risk through some redress-oriented scheme of due process that allows individuals alleging improper treatment to seek administrative and judicial relief from the error they assert in their particular case. Such an approach is inadequate …

The Constitutional Right To Make Medical Treatment Decisions: A Tale Of Two Doctrines, B. Jessie Hill

Faculty Publications

The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose ¿partial-birth¿ abortion and the right to use medical marijuana, the Supreme Court reached radically different results, based on radically different reasoning.

More recent developments, including last Term's decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, the goal of this Article is to view all of the constitutional cases touching on …

The Little Word "Due", Andrew T. Hyman

ExpressO

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, …

Manson V. Brathwaite Revisited: Towards A New Rule Of Decision For Due Process Challenges To Eyewitness Identification Procedures, Timothy P. O'Toole, Giovanna Shay

Faculty Scholarship

Almost 30 years ago, in Manson v. Brathwaite--the Supreme Court set out a test for determining when due process requires suppression of an out-of-court identification produced by suggestive police procedures. The Manson Court rejected a per se exclusion rule in favor of a test focusing on whether an identification infected by suggestive procedures is nonetheless reliable when judged in the totality of the circumstances. The purpose of this Article is two-fold: to demonstrate that the Manson rule of decision fails to safeguard due process values, in part because it does not account for the intervening social science research, and to …

Towards Attenuation: A 'New' Due Process Limit On Pinkerton Conspiracy Liability, Mark L. Noferi

Mark L Noferi

Since 1946, Pinkerton v. United States has purportedly settled the rule that a conspirator can be held vicariously liable for the crimes of his co-conspirators. Over the last thirty years, however, courts have begun to articulate and enforce Due Process limits on vicarious conspiracy liability where defendants are "attenuated" from their co-conspirator's crimes. This article represents the first academic examination of constitutional Due Process limits on Pinkerton conspiracy liability, their theoretical underpinnings, and the implications as the federal government pursues terrorism and corporate conspiracy prosecutions.

The State Due Process Justification For A Right To Counsel In Some Civil Cases, Michael A. Millemann

Faculty Scholarship

No abstract provided.

Rankings, Reductionism, And Responsibility, Frank Pasquale

Faculty Scholarship

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero

Journal Articles

The so-called Religious Right's reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Designer Trials, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power.

Such a …

Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish

Articles by Maurer Faculty

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process considerations apply …

Reconceptualizing Due Process In Juvenile Justice: Contributions From Law And Social Science, Christopher Slobogin, Mark R. Fondacaro, Tricia Cross

Vanderbilt Law School Faculty Publications

This article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the …

The Electronic Recording Of Criminal Interrogations, Roberto Iraola

University of Richmond Law Review

Should law enforcement officers be required to record, by video or audiotape, custodial interrogations of suspects? If so, how much, the entire interrogation or just the confession? Many prosecutors and police departments maintain that a recording requirement will hamper law enforcement and discourage suspects from talking. Proponents of this measure argue that the recording of interrogations protects against false confessions, augments the effective administration of justice, and serves to improve the relationship between the public and the police.

This article generally examines the developing case law on this question. Because of the incriminating nature of confessions, the article, by way …

The Tax Code As Nationality Law, Michael S. Kirsch

Journal Articles

This article questions the frequently-asserted axiom that Congress's taxing power knows no bounds. It does so in the context of recently-enacted legislation that creates a special definition of citizenship that applies only for tax purposes. Historically, a person was treated as a citizen for tax purposes (and therefore taxed on her worldwide income and estate) if, and only if, she was a citizen under the nationality law. As a result of the new statute, in certain circumstances a person might be treated as a citizen for tax purposes (and therefore taxed on her worldwide income and estate) for years or …

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

Publications

No abstract provided.