Substantive Due Process
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Reproductive Rights in the Legal Academy: a New Role for Transnational Law
Reproductive Rights in the Legal Academy: A New Role for Transnational Law Martha F. Davis Northeastern University - School of Law United States Bethany Withers Harvard University Law School United States Journal of Legal Education, September 2009 Abstract: Most law school courses approach reproductive rights law from a purely domestic perspective, as an extensive survey of casebooks and course material reveals. The authors argue that a transnational perspective can enhance the teaching of sexual and reproductive health in all of the law school courses and doctrinal settings in which this topic in treated. While the topic of “Global Sexual and Reproductive Rights” can be presented in a free-standing course, transnational perspectives should also be integrated across the curriculum where sexual and reproductive rights are discussed. Expanding reproductive rights pedagogy to address transnational perspectives will aid in exposing a wide range of students to transnational material, will expand students’ preparedness to analyze such materials, and will better reflect the debates on sexual and reproductive health currently taking place outside of law school classrooms. Drawing on a range of foreign and international material, the authors provide specific suggestions for integrating such material into courses on Constitutional Law, Family Law and Bioethics. The pages below are an excerpt from a forthcoming article by Professor Davis and Bethany Withers in the Journal of Legal Education. Constitutional Law Right to Procreate and Transnational Law Beginning with Skinner, transnational material can supplement a discussion of domestic fundamental rights questions in a constitutional law course. Interestingly, Justice Douglas’s opinion in Skinner framed the case as one that “touches a sensitive and important area of human rights,” thus signaling the relevance of transnational law—if not jurisprudentially then certainly as it is suggested here, for pedagogical purposes. -
Rational Basis "Plus" Thomas B
University of Minnesota Law School Scholarship Repository Constitutional Commentary 2017 Rational Basis "Plus" Thomas B. Nachbar Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Nachbar, Thomas B., "Rational Basis "Plus"" (2017). Constitutional Commentary. 1094. https://scholarship.law.umn.edu/concomm/1094 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. NACHBAR_DRAFT 4.DOCX (DO NOT DELETE) 7/13/17 12:45 PM RATIONAL BASIS “PLUS” Thomas B. Nachbar* INTRODUCTION The Supreme Court has asserted the power to review the substance of state and federal law for its reasonableness for almost 200 years.1 Since the mid-1960s, that review has taken the form of the “familiar ‘rational basis’ test,”2 under which the Court will strike a statute if it is not rationally related to a legitimate governmental interest.3 The test is hardly perfect. It lacks, for one thing any textual basis in the Constitution.4 It has been criticized from both ends, as alternatively a judicial usurpation of legislative power5 or “tantamount to no review at all.”6 But the Court has applied it for decades,7 and while the test is not universally loved, neither is it particularly controversial, at least as rules of constitutional law go. If rational basis scrutiny itself is largely uncontroversial, the same cannot be said for so-called “rational basis with bite,” “rational basis with teeth,” or—as I shall call it—“rational basis plus” review.8 Rational basis plus is, as Justice O’Connor * Professor of Law, University of Virginia School of Law. -
THE ROLE of the RULE of LAW in VIRTUAL COMMUNITIES Nicolas Suop
THE ROLE OF THE RULE OF LAW IN VIRTUAL COMMUNITIES Nicolas Suop TABLE OF CONTENTS I. INTRODUCTION ................................................1818 II. THE DETERMINISTIC TREND IN CYBERLAW THEORY .............................................. 1820 A. THE DEVELOPMENT OF CYBERLAW THEORETICAL DISCOURSE .................................................... 1821 1. The FlawedAssumptions in the Development of Cberlaw Theoretical Discourse...................................... 1825 2. Situating Cyberspace in Order to Overcome the Dichotomy Between Regulation andA utonomy......................... ... .................. 1830 B. USING THE RULE OF LAW TO BETTER CONCEPTUALIZE PRIVATE GOVERNANCE POWER ............................ 1836 III. GOVERNANCE LIMITED BY LAW .................. .............. 1842 A. RULE OF LAW LIMITATIONS ON ARBITRARY PUNISHMENT .......... 1843 B. PROTECTION OF SUBSTANTIVE INTERESTS .......... ............ 1845 1. Freedom of Expression Concerns: Discrimination,Speech, and Protest.. 1850 2. Propert Rights..................................... 1856 3. Right to Privacy.................................... 1861 4. Rights of Legal Enforcement............................ 1863 5. Summary of Substantive Values and a More GeneralApplication........ 1865 IV. FORMAL LEGALITY....................... ............. 1866 A. PREDICTABILITY ................................... ...... 1866 1. Clear Rules ................................. ...... 1867 2. Changing Rules.................................... 1868 3. Emergent Behavior and Uncertain Rules.......................... -
The Seventh Circuit's Application of the Substantive Due Process Right Of
SEVENTH CIRCUIT REVIEW Volume 3, Issue 1 Fall 2007 FAMILIA INTERRUPTUS: THE SEVENTH CIRCUIT’S APPLICATION OF THE SUBSTANTIVE DUE PROCESS RIGHT OF FAMILIAL RELATIONS ∗ SCOTT J. RICHARD Cite as: Scott J. Richard, Familia Interruptus: The Seventh Circuit’s Application of the Substantive Due Process Right of Familial Relations, 3 SEVENTH CIRCUIT REV. 140 (2007), at http://www.kentlaw.edu/7cr/v3-1/richard.pdf. INTRODUCTION One of the oldest substantive due process rights derived from the Fourteenth Amendment and recognized by the Supreme Court is the right of individuals to be free from government intrusion into the control and management of their families.1 Despite its rhetoric that familial rights are a fundamental liberty interest protected by the Fourteenth Amendment, the Supreme Court’s recognition of this right has been far from clear. Until recently,2 the articulation of this right has been enmeshed in the analysis of other constitutional rights, and even the recent Supreme Court jurisprudence is ambivalent towards this liberty interest, making it difficult to decipher the scope of this right and the appropriate standard to determine when it should be protected. ∗ J.D. candidate, May 2008, Chicago-Kent College of Law, Illinois Institute of Technology; A.M., 2001, University of Chicago; B.A., 1999, Hamilton College. I would like to acknowledge Nikolai G. Guerra and Nicole L. Little for their careful edits of this Note. 1 Meyer v. Nebraska, 262 U.S. 390, 399 (1923). 2 Troxel v. Granville, 530 U.S. 57 (2000). 140 SEVENTH CIRCUIT REVIEW Volume 3, Issue 1 Fall 2007 The Seventh Circuit’s most recent case involving a claim of familial rights, United States v. -
Federal Register/Vol. 84, No. 248/Friday, December 27, 2019
71714 Federal Register / Vol. 84, No. 248 / Friday, December 27, 2019 / Rules and Regulations DEPARTMENT OF TRANSPORTATION procedures for the review and clearance Department’s rulemaking process can be of guidance documents; and (3) a found at 49 CFR 5.5. Office of the Secretary General Counsel memorandum, This final rule reflects the existing ‘‘Procedural Requirements for DOT role of the Department’s Regulatory 14 CFR Parts 11, 300, and 302 Enforcement Actions’’ (February 15, Reform Task Force in the development 2019),3 which clarifies the procedural of the Department’s regulatory portfolio 49 CFR Parts 1, 5, 7, 106, 211, 389, 553, requirements governing enforcement and ongoing review of regulations. and 601 actions initiated by the Department, Established in response to Executive including administrative enforcement Order 13777, ‘‘Enforcing the Regulatory RIN 2105–AE84 proceedings and judicial enforcement Reform Agenda’’ (February 24, 2017), Administrative Rulemaking, Guidance, actions brought in Federal court. the Regulatory Reform Task Force is the and Enforcement Procedures This final rule removes the existing Department’s internal body, chaired by procedures on rulemaking, which are the Regulatory Reform Officer, tasked AGENCY: Office of the Secretary of outdated and inconsistent with current with evaluating proposed and existing Transportation (OST), U.S. Department departmental practice, and replaces regulations and making of Transportation (DOT). them with a comprehensive set of recommendations to the Secretary of ACTION: Final rule. procedures that will increase Transportation regarding their transparency, provide for more robust promulgation, repeal, replacement, or SUMMARY: This final rule sets forth a public participation, and strengthen the modification, consistent with applicable comprehensive revision and update of overall quality and fairness of the law. -
Conceiving Due Process
Conceiving Due Process Cynthia R. Farinat "No answer is what the wrong question begets. We seem unable to make peace with procedural due process.2 To be sure, in the twenty years since Goldberg v. Kelly3 the Supreme Court has come to speak in the clear, strong tones of doctrinal certainty. It now deals deftly with claims that people have been mishandled by their government, first culling out those who can point to no "entitlement" and then weighing up, for those who remain, just how much process the system can afford. Once-sharp and fundamental debates on the Court about the nature, scope, and purpose of procedural due process in the administrative state have subsided into occasional squabbles among the justices about the margins of the doctrine and sporadic disagreements over its specific application. Do not, however, mistake this lessening conflict on the Court for some emergent consensus that procedural due process has been brought, at last, through the turbulent years of rapid growth to a stage of doctrinal maturity and sophistication. Scratch the smooth, plausible skin of the doctrine and there lies turmoil, contradiction, and instability, a pathological combination of ineffectu- alness and destructiveness. For years, commentators have warned of this, in terms ranging from dignified rebuke4 to near evangelical condemnation.' Indeed, the doctrine's most remarkable quality may be its ability to transcend traditional boundaries and unite, in thorough-going disapproval, those on the political left and right, constitutional theorists and administrative law scholars, academics and practitioners, Kantians, utilitarians, and Hegelians.6 Procedural t Visiting Professor, Harvard Law School; Associate Professor, Cornell Law School. -
The Political Question Doctrine: Justiciability and the Separation of Powers
The Political Question Doctrine: Justiciability and the Separation of Powers Jared P. Cole Legislative Attorney December 23, 2014 Congressional Research Service 7-5700 www.crs.gov R43834 The Political Question Doctrine: Justiciability and the Separation of Powers Summary Article III of the Constitution restricts the jurisdiction of federal courts to deciding actual “Cases” and “Controversies.” The Supreme Court has articulated several “justiciability” doctrines emanating from Article III that restrict when federal courts will adjudicate disputes. One justiciability concept is the political question doctrine, according to which federal courts will not adjudicate certain controversies because their resolution is more proper within the political branches. Because of the potential implications for the separation of powers when courts decline to adjudicate certain issues, application of the political question doctrine has sparked controversy. Because there is no precise test for when a court should find a political question, however, understanding exactly when the doctrine applies can be difficult. The doctrine’s origins can be traced to Chief Justice Marshall’s opinion in Marbury v. Madison; but its modern application stems from Baker v. Carr, which provides six independent factors that can present political questions. These factors encompass both constitutional and prudential considerations, but the Court has not clearly explained how they are to be applied. Further, commentators have disagreed about the doctrine’s foundation: some see political questions as limited to constitutional grants of authority to a coordinate branch of government, while others see the doctrine as a tool for courts to avoid adjudicating an issue best resolved outside of the judicial branch. Supreme Court case law after Baker fails to resolve the matter. -
The Nondelegation Doctrine: Alive and Well
\\jciprod01\productn\N\NDL\93-2\NDL204.txt unknown Seq: 1 28-DEC-17 10:20 THE NONDELEGATION DOCTRINE: ALIVE AND WELL Jason Iuliano* & Keith E. Whittington** The nondelegation doctrine is dead. It is difficult to think of a more frequently repeated or widely accepted legal conclusion. For generations, scholars have maintained that the doctrine was cast aside by the New Deal Court and is now nothing more than a historical curiosity. In this Article, we argue that the conventional wisdom is mistaken in an important respect. Drawing on an original dataset of more than one thousand nondelegation challenges, we find that, although the doctrine has disappeared at the federal level, it has thrived at the state level. In fact, in the decades since the New Deal, state courts have grown more willing to invoke the nondelegation doctrine. Despite the countless declarations of its demise, the nondelegation doctrine is, in a meaningful sense, alive and well. INTRODUCTION .................................................. 619 R I. THE LIFE AND DEATH OF THE NONDELEGATION DOCTRINE . 621 R A. The Doctrine’s Life ..................................... 621 R B. The Doctrine’s Death ................................... 623 R II. THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION ....... 626 R III. THE PERSISTENCE OF THE NONDELEGATION DOCTRINE ...... 634 R A. Success Rate .......................................... 635 R B. Pre– and Post–New Deal Comparison .................... 639 R C. Representative Cases.................................... 643 R CONCLUSION .................................................... 645 R INTRODUCTION The story of the nondelegation doctrine’s demise is a familiar one. Eighty years ago, the New Deal Court discarded this principle, and since then, this once-powerful check on administrative expansion has had no place in our constitutional canon. -
Substantive Due Process and Labor Law
Substantive Due Process and Labor Law by Bany W. Poulson Department of Economics, Universiry of Colorado Substantive due process refers to a judicial policy that substantively protects, under the due process clauses of the Fifth and Fourteenth Amendments, activities that are not elsewhere secured in the Constitution. With reference to the protection of economic liberties, the doctrine is referred to as economic due process. From its earliest days the Supreme Court had protected property rights based upon natural rights and social compact doctrine. In the middle of the nineteenth century the court turned from these so-called unwritten laws to the due process clause of the Constitution as the basis for substantive protection of property rights. Prior to the 1850's the due process clause was invoked in criminal cases to ensure the procedural rights of defendants. The first Supreme Court application of substan- tive due process was in the 1855 Hoboken Land decision, in which the court determined that due process relates to civil processes at common law.' That made it possible for the court to invoke the due process clause as a protection of property rights and to restrain legislative infringement of those rights. State courts also turned to the due process clause in state constitutions as the basis for substantive protection of property rights. The most important of these early decisions was Wynehamer v. People in 1856.*The New York Court of Appeals ruled that a state law regulating the sale of intoxicating beverages was unconstitutional under the due process clause. The case was important because it extended substantive due process to the use of property as well as the ownership of property. -
19-161 Department of Homeland Security V
(Slip Opinion) OCTOBER TERM, 2019 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 19–161. Argued March 2, 2020—Decided June 25, 2020 The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain “applicants” seeking admission into the United States, whether at a designated port of entry or elsewhere. 8 U. S. C. §1225(a)(1). An applicant may avoid expedited removal by demonstrating to an asylum officer a “credible fear of persecution,” defined as “a significant possibility . that the alien could establish eligibility for asylum.” §1225(b)(1)(B)(v). An ap- plicant who makes this showing is entitled to “full consideration” of an asylum claim in a standard removal hearing. 8 CFR §208.30(f). An asylum officer’s rejection of a credible-fear claim is reviewed by a su- pervisor and may then be appealed to an immigration judge. §§208.30(e)(8), 1003.42(c), (d)(1). But IIRIRA limits the review that a federal court may conduct on a petition for a writ of habeas corpus. -
Lions Over the Throne - the Udicj Ial Revolution in English Administrative Law by Bernard Schwartz N
Penn State International Law Review Volume 6 Article 8 Number 1 Dickinson Journal of International Law 1987 Lions Over The Throne - The udicJ ial Revolution In English Administrative Law by Bernard Schwartz N. David Palmeter Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons Recommended Citation Palmeter, N. David (1987) "Lions Over The Throne - The udJ icial Revolution In English Administrative Law by Bernard Schwartz," Penn State International Law Review: Vol. 6: No. 1, Article 8. Available at: http://elibrary.law.psu.edu/psilr/vol6/iss1/8 This Review is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. Lions Over the Throne - The Judicial Revolution in English Administrative Law, by Bernard Schwartz, New York and London: New York University Press, 1987 Pp. 210. Reviewed by N. David Palmeter* We learn more about our own laws when we undertake to compare them with those of another sovereign. - Justice San- dra Day O'Connor' In 1964, half a dozen years before Goldberg v. Kelly' began "a due process explosion" 3 in the United States, Ridge v. Baldwin4 be- gan a "natural justice explosion" in England. The story of this explo- sion - of this judicial revolution - is the story of the creation and development by common law judges of a system of judicial supervi- sion of administrative action that, in many ways, goes far beyond the system presently prevailing in the United States. -
6. Freedom of Association and Assembly
6. Freedom of Association and Assembly Contents Summary 161 The common law 163 Protections from statutory encroachment 164 Australian Constitution 164 The principle of legality 165 International law 166 Bills of rights 167 Justifications for limits on freedom of association and assembly 168 Legitimate objectives 168 Balancing rights and interests 170 Laws that interfere with freedom of association and assembly 171 Criminal law 172 Public assembly 176 Workplace relations laws 176 Migration law character test 184 Other laws 186 Conclusion 188 Summary 6.1 Freedom of association concerns the right of all persons to group together voluntarily for a common goal or to form and join an association, such as a political party, a professional or sporting club, a non-government organisation or a trade union. 6.2 This chapter discusses the source and rationale of the common law rights of freedom of association and freedom of assembly; how these rights are protected from statutory encroachment; and when laws that interfere with them may be considered justified, including by reference to the concept of proportionality. 6.3 Freedom of association is closely related to other fundamental freedoms recognised by the common law, including freedom of speech. It has been said to serve the same values as freedom of speech: ‘the self-fulfilment of those participating in the meeting or other form of protest, and the dissemination of ideas and opinions essential to the working of an active democracy’.1 Freedom of association is different from, but also closely related to, freedom of assembly. 1 Eric Barendt, Freedom of Speech (Oxford University Press, 2nd ed, 2007) 272.