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In criminology, social and legal eras are often referred to as dominated by either due process or crime control narratives. In general, crime control narratives focus on the need for tough-on-crime policies and on the terror of criminals wreaking havoc in society. By contrast, due process narratives focus on the need to move slowly and methodically through our justice process to avoid mistakes and violations of human rights. These eras swing back and forth, neither wholly related nor unrelated to the conservative/liberal pendulum of broader politics. Arguably, despite a conservative and nationalist moment in US politics, our criminal justice policy pendulum is again swinging in the due-process direction. This is evidenced in policy reforms and popular calls for policy reform such as monitoring the police, ending cash bail, legalizing marijuana, and so on. Contrary to prevailing trends, best-selling true crime books remain crime control oriented regardless of the historical/cultural era. [ABSTRACT FROM AUTHOR]

The right to counsel is a cornerstone of due process. This article explores the legal construction of "indigency" in criminal county courts. I examine Texas's Fair Defense Act (2001) , a policy mandate that required all 254 counties to create formal criteria used for determining eligibility for access to counsel, as an empirical case for understanding local policy choices that shape access to justice. Drawing on novel data from court plans, I find significant variation in the stringency of eligibility criteria used to determine indigency. Results show that socioeconomic conditions, racial threat, interest group presence, and elements of judicial discretion are key determinants of restrictive eligibility criteria. These findings suggest racial threat can be tied to the institutional design of policies, rather than the enforcement or dormancy of criminal law. The variable institutionalization of eligibility criteria has implications for understanding the entrenchment of racial and class-based inequalities in access to legal institutions. [ABSTRACT FROM AUTHOR]

This paper explores the benefits and pitfalls associated with integrating a common blockchain model within a distinct administrative environment, focusing particularly on its effects on decision-making processes. The study is grounded in the doctrine of procedural due process, a holistic concept encompassing intertwined administrative rules and principles, designed to promote fairness and justice in decision-making, which can be succinctly distilled into three core principles: accuracy, integrity, and transparency. On initial examination, these principles seem to correspond with the fundamental characteristics of blockchain technology, which are identified as authenticity, integrity, and transparency. In our analysis, we measure the extent to which the attributes of blockchain technology align with the principles of the due process doctrine. An essential component of this assessment includes a meticulous examination of the practical merging of each characteristic within the decision-making procedure. The approach and practical applications explored in this study highlight the potential of blockchain technology to enhance adherence to due process, especially in areas where traditional trust-based systems have faltered in maintaining basic procedural safeguards. However, given the intricate complexity tied to its implementation, this technology should be regarded as a fallback option, strictly reserved for situations where the benefits of its utilisation unmistakably outweigh the numerous inherent risks. In the ensuing sections of this paper, we will delve deeper into these risks and propose actionable mitigation strategies. [ABSTRACT FROM AUTHOR]

Sexual harassment remains pervasive in the workplace. Complementing past research examining the intra-organizational effects of sexual harassment, this paper investigates its extra-organizational consequences by considering reputational damage organizations can suffer from sexual harassment claims. Four experiments (NTotal = 1,534) show that even a single sexual harassment claim can damage public perception of gender equality of an organization, which reduces organizational attractiveness. However, an organizational response characterized by proactive consideration of the claimant (compared to no mention of sexual harassment, mention of sexual harassment with no response, or a minimizing response to a sexual harassment claim) fully restores, and sometimes even increases, public perceptions of the organization's commitment to due process and gender equality. Implications for theory and practice are discussed. [ABSTRACT FROM AUTHOR]

Criminal justice institutions are held to account in a number of ways yet there is limited knowledge as to how these systems of regulation function. One primary method for regulating systems of punishment is through the use of independent inspectorates, yet very little empirical research has explored how inspectorates engage with the organisations they inspect nor how inspection is received by inspected organisations. Procedural justice theory has been used to understand compliance with laws. It can also shed light on compliance with systems of accountability, although there is a dearth of research in this area. Thus, our understanding of how regulation works in situ is limited. This article uses procedural justice theory to analyse data that were collected in England and Wales to explore how His Majesty's Inspectorate of Probation garners legitimacy from those it inspects. The article suggests that the Inspectorate is seen to be trustworthy and impartial, treats people with respect and provides them with a voice although there is variance between groups. The article contributes to (1) our understanding of how regulation works in the field of probation and (2) procedural justice theory by exposing the mechanisms that underpin compliance with regulatory regimes in institutional settings. [ABSTRACT FROM AUTHOR]

At the beginning of Henry VIII's reign, the prosecution of heresy was based on three statutes of the late fourteenth and early fifteenth centuries. Under this system, the Church tried the crime with the assistance of secular authority. Juries presented suspects, whose cases were then transferred to the church courts for determination. In 1532, the Supplication against the Ordinaries challenged the conduct of heresy trials. It invoked common-law principles about due process and standards of proof. Two years later, a new statute modified the system, although less drastically than had been proposed. The royal supremacy and new religious policies changed the context in which heresy was prosecuted. Up until 1539, however, the church courts still determined accusations. Thereafter, in the case of specified heresies, the Act of Six Articles made lay juries responsible for determining guilt or innocence. Commissions under this act combined elements of canon law and common law. These reforms were, however, not seen to have improved the conduct of heresy trials. It proved easier to criticize the traditional method of prosecution than to devise a better one. [ABSTRACT FROM AUTHOR]

The article describes the court case Alternatives v. Department of Human Services, wherein the Commonwealth Court of Pennsylvania considered government transparency and access to third-party records via the Right to Know Law (RTKL). It reviews RTKL provisions and statues and analyzes the dispute over access to invoices, receipts, expenditure documentation and agreements between Real Alternatives and its predecessor groups, and infringement of due process, privacy and property protection rights.

Just weeks before the Supreme Court in Dobbs v. Jackson Women's Health Organization abolished the individual right to terminate a pregnancy without government interference, Republican Senators in then-Judge Ketanji Brown Jackson's confirmation hearings queried her about the Ninth Amendment twenty-three times. Because the Ninth Amendment has long been treated as either excess verbiage or a rule of construction, the Senators' redundant questioning was auspicious: Could it play a role in the 6-3 conservative majority's reconfiguration of twentieth century constitutional law precedent? This Article explores the potential relationship between the Ninth Amendment and the modern Court's approach to unenumerated rights as a matter of substantive due process. It posits that, from the federalism vantage point outlined in dissenting opinions in Griswold v. Connecticut, the Ninth Amendment, considered alongside Dobbs, may be positioned to justify reversion Of other unenumerated rights to state legislatures within a generation's time. The problem with the Dobbs approach is that reliance on federalism as the panacea for rights protection is, empirically speaking, a myth. The majority in Dobbs signaled a penchant toward a restrictive view of unenumerated rights using "history and tradition as the touchstone, emboldening the role of States over other sources of what Justice John Paul Stevens once called the "conceptual core " of liberty. But the Dobbs majority wrongly assumed that the electoral system works fairly to reflect the actual will of the voting public. It also ignored the Supreme Court's decades-long hostility to voting rights, unnecessarily limiting the ability of individuals to elect representatives who will respond to the will of constituents. The Court's new doctrinal trajectory is thus not sufficiently robust to protect the individual from government overreach. Long before Griswold, the Court outlined an approach to unenumerated rights in Meyer v. Nebraska, which recognized rights beyond the Constitution's text as necessary to liberty while at the same time confining unelected judges' power to recognize new rights arbitrarily. Viewed as a mechanism for cabining the vast powers of government, Meyer offers a paradigm-shift in rights analysis--one that is grounded in the Court's precedent as positive law--that would appropriately tether it to the concepts of limited government that deeply animate the Constitution rather than on socially controversial culture debates. [ABSTRACT FROM AUTHOR]

While the overwhelming majority of class action lawsuits filed in this country are plaintiff class actions—with named plaintiffs representing larger classes of plaintiffs—Rule 23 of the Federal Rules of Civil Procedure technically permits plaintiffs to sue a named defendant representing a class of defendants as well. However, such suits are exceptionally rare—so much so that they have been described as “as rare as unicorns.” Still, when defendant classes emerge, they create two distinct problems. First, defendant classes cause both federal district courts and their state counterparts severe administrative headaches. Second, defendant classes trample on the due process rights of the defendants who are bound by their judgments. At least partially in response to these administrative and due process concerns, states have experimented with fixes to the defendant class action device in their equivalent class action rules. This Note categorizes and analyzes those variations on Federal Rule 23. It shows that Maryland’s solution of plaintiffonly classes is good; Mississippi and Virginia’s solution of nixing class actions altogether is bad; and Iowa, New Hampshire, and North Dakota’s solution of barring opt-outs from defendant class actions is quite clearly unconstitutional. Ultimately, this Note concludes that—given the due process issues deeply embedded in the defendant class action device— other states and the federal judiciary should follow the lead of Maryland and abrogate defendant classes altogether. However, in the alternative, it argues that, at the very least, state statutes and rules barring a defendant from opting out of a defendant class violate the Fourteenth Amendment’s Due Process Clause, and the Supreme Court should intervene as soon as a case comes to its attention. [ABSTRACT FROM AUTHOR]

The article focuses on assessing the progress and challenges related to adjudicative competence and pretrial custodial interrogations in juvenile justice. It examines the evolution of laws, policies, and practices concerning these areas, highlighting the influence of neuroscientific and psychosocial developmental research on understanding juveniles' decision-making capacities and vulnerabilities. It discusses the need for reforms to protect juveniles due process rights within the legal system.

The article delves into the case of McCoy, analyzing the Court's focus on autonomy-as-choice, critiquing its impact on attorney-client relationships and neglect of systemic issues harming human dignity. It argues that the Sixth Amendment framework misinterprets the case, and emphasizes McCoy's Fifth Amendment rights against self-incrimination. Topics include critique of autonomy-as-choice, Sixth Amendment misapplication, and Fifth Amendment rights violation.

The article focuses on the historical development of procedural powers in federal courts, particularly in equity cases, examining the complex sources of authority and the persistent debates surrounding the legality of procedural supervision. It discusses the early statutory framework governing federal courts' procedural law, the evolution of procedural rules, and the distinct tradition of equity procedure, arguing that despite ongoing concerns.

The article focuses on the potential impact of altering the most-favored-nation doctrine in free exercise jurisprudence, particularly concerning public accommodations laws, as evidenced by recent developments in court cases like Yeshiva University v. YU Pride Alliance. It explores the significance of equal value within this legal framework, demonstrating how its removal could undermine longstanding precedents and the broad coverage of antidiscrimination laws.

The article argues for the state of Florida to align its appellate standards of review to match the constitutional liberty interests implicated in a termination of parental rights proceeding. Topics discussed include the deferential standard of review used in Florida, requirement in other U.S. states for de novo review to protect the constitutional right at stake, Due Process Clause of the 14th Amendment and the burden of proof, and associational rights sheltered by the 14th Amendment.

Conspiracy jurisdiction is the theory that a defendant may be subject to personal jurisdiction in the forum state based on actions taken in furtherance of a conspiracy. What makes conspiracy jurisdiction unique is that as long as the acts of a coconspirator were directed at the forum state, other members of the conspiracy may be subject to jurisdiction in the forum state, even if they otherwise lack their own direct contacts. While all personal jurisdiction issues are subject to the Due Process Clause, nowhere else is it so peculiarly implicated--and sometimes sidestepped--as when conspiracy forms the basis for personal jurisdiction. This still-developing gloss on specific jurisdiction has seen increasing but chaotic use in federal and state courts. As a result, and in contrast to the doctrine's increasing use in litigation, scholarship is extremely sparse. This Article is the first to offer a comprehensive look at conspiracy jurisdiction's provenance and the complex current state of the law, analyzing the doctrine's varied applications in light of recent Supreme Court authority. Our Article relies chiefly on Walden v. Fiore and Ford v. Montana, which influence but do not control the doctrine, to analyze the due process contours of conspiracy jurisdiction and how the doctrine can--and will--survive once the Supreme Court inevitably grants review to resolve an active and jagged circuit split. [ABSTRACT FROM AUTHOR]

This article explores the issue of unconstitutional bail schedules in California and the resulting unequal treatment and violations of civil rights. It discusses specific cases where individuals were held in custody or released based on their ability to pay bail, rather than the merits of their case. The author argues for legislative action to ensure consistent and fair bail procedures across the state, as recent court decisions have provided some protections for arrestees' rights but further clarification is needed. The article also calls for challenges to the constitutionality of bail schedules and highlights the need for clearer guidelines and procedures to protect defendants' pretrial liberty. [Extracted from the article]

AI is everywhere, helping and protecting society, right? In a mere twelve seconds, AI can use a person's literal voice, regardless of the words spoken, to detect alcohol intoxication and save lives risked by intoxicated behaviors. Recent advances in artificial intelligence have reached a point where this technology not only exists, but also is inexpensive, instantaneous, easily accessible, increasingly accurate, and potentially undetectable. However, this voice analysis can also incriminate subjects and potentially reveal deeply personal information, all while bypassing typical constitutional protections. Such technology should be questioned lest society substitute for human judgment encoded procedures that obliterate privacy and misjudge character--often discriminately so for traditionally underrepresented populations. The necessary companion to "big data" breakthroughs of voice analysis is a thoughtful assessment of how to adapt individual rights in light of these advancements. From First Amendment freedoms through Fourteenth Amendment due process and equal protection, audio-based deep-learning algorithms used to identify alcohol inebriation present constitutional challenges that must be addressed. This Article does just that. [ABSTRACT FROM AUTHOR]

Traditional notions of crime control often position the police against an individual, known or not yet known, who is responsible for the commission of a crime. However, with increasingly sophisticated technology, policing increasingly prioritizes the prevention of crime, making it necessary to ascertain who, or what class of persons, may be the next likely criminal before a crime can be committed, termed predictive policing. This causes a shift from individualized suspicion toward predictive profiling that may sway the expectations of a police patrol. Classically, where a patrol officer forms reasonable suspicion prior to a stop, it is based upon his/her analysis of the situation taken as a whole in context. However, where a predictive profile is employed, information available to the officer accordingly adjusts his/her perception of context and affects the application of the reasonable suspicion standard. This article addresses the way in which new approaches to forming reasonable suspicion affect the due process protection of individuals' fundamental rights. It argues that while an officer still operates with good faith discretion, using predictive profiling causes reasonable suspicion to be based on an augmented understanding of reality and as a result, due process guarantees are weakened. The rights to non-discrimination and the presumption of innocence are assessed and argued as illustrative of this weakening and shift in policing standards. The article ultimately argues that while predictive policing cannot be categorically labeled as inconsistent with criminal justice, changes as seemingly moderate as the manner in which discretion operates have larger effects on individuals' rights. [ABSTRACT FROM AUTHOR]

Socio-legal ethnographies have focused largely on the dramaturgical themes present in the competing performances seen in adversarial trials. Drawing on ethnographic observations of British homicide investigations, we illuminate the hidden "backstage" space of prosecution barristers' case conferences. Using Goffman's dramaturgical framework, we analyze the interactions, deliberations, and negotiations that are enacted between barristers, homicide detectives, forensic scientists, and other specialists. To our knowledge, the work that happens in these conferences has never been documented. Our findings reveal how prosecution narratives evolve and are tested behind the scenes before being performed in court. We pay particular attention to the role of anticipatory work in guiding how criminal justice actors choreograph the prosecution case. The findings add to our understanding of narrative case building and elaborate Goffman's dramaturgical framework. We discuss the implications of our findings for due process. [ABSTRACT FROM AUTHOR]

The article discusses defendants' rights to a fair and adequate trial in ineffective assistance of counsel claims in the U.S. Topics discussed include the right to effective assistance to counsel in a criminal proceeding under the Sixth Amendment, the Supreme Court case Strickland v. Washington, and suggested remedies to the impossibility of prevailing on ineffective assistance of counsel claims.

On June 24, 2022, the Supreme Court overturned nearly fifty years of precedent when it declared in Dobbs v. Jackson Women's Health Organization that abortion was not a fundamental right, and therefore it was not protected by the Fourteenth Amendment and substantive due process. In law school corridors and legal scholar circles, discussion of the Court's evisceration of abortion rights focused on the corresponding changes in Fourteenth Amendment jurisprudence and the Court's outright dismissal of stare decisis. But in homes, hospitals, community centers, and workplaces, different conversations were happening. Conversations, mostly had by women, concerned the real-life consequences of overturning Roe v. Wade and what losing abortion access meant for millions of people, particularly women. Their stories mirrored those shared by dozens of women in the amici briefs filed in support of Jackson Women's Health Organization. But, unlike previous abortion-related decisions, these stories were completely ignored by the Court in its decision to overturn Roe v. Wade. By ignoring the stories of women, the Court failed to understand what "liberty" means to women. This Article discusses how the Dobbs Court failed to consider the lived experiences of women--not only those women who seek or have had abortions, and ultimately decided that the liberty and freedom protected by the Fourteenth Amendment of our Constitution do not include what women need to be autonomous and free. By fully constricting the right to abortion, a right which was already limited to those who lived in certain states and to those who could afford the procedure, the Court broke with its own tradition. By ignoring the lived experiences of those most affected by the substantive right at issue, the Court broke with its practice of considering the content and meaning of liberty of those most affected by the government regulation. Rather, as this Article illuminates, the Court's disregard, intentional or not, of these women's stories in deciding Dobbs shows that what women need to be free is no longer protected by the Fourteenth Amendment's Due Process Clause. Moreover, this Article concludes that the diminution of women's constitutional rights in this context, reduces women to their reproductive capacities and to state-sanctioned gender roles, and ultimately it consigns them to a form of second-class citizenship. [ABSTRACT FROM AUTHOR]

The United States is currently suffering a pervasive and unsettling shortage of housing and increased housing unaffordability. Rents are at an all-time high, which has a disproportionate impact on people of color and people earning lower incomes as these individuals are more likely to rent rather than own their homes. Moreover, people solidly in the middle class are finding it increasingly difficult to purchase residences within their budgets. Critics have identified "single-family zoning"-allowing only one single-family home per lot-as a major cause of the housing supply and affordability problems. In response, a handful of states and cities have recently passed legislation that voids or limits this zoning by allowing small-scale multifamily units. Proponents claim that the increased density will help address shortages, lack of affordability, and racial and social exclusion. Properties under single-family zoning may also be subject to private covenants that limit density of land use with substantive restrictions like those imposed by zoning. Thus, unless existing private anti-density restrictions are also removed or limited, they will still bar multi-family development even though zoning has been relaxed. After analyzing takings arguments against invalidating existing single-family covenants, this article suggests and explores a different approach. Existing single-family covenants can be voided under a longstanding doctrine that bars enforcement of covenants violating public policy. The article explores how and why the doctrine remains viable and provides the public policy basis for application to single-family covenants. It also argues that an invalidated single-family covenant is not "property" requiring Fifth Amendment compensation. These covenants can thus be removed by government, most likely by legislation, without draining the public purse. [ABSTRACT FROM AUTHOR]

Since the overturning of prior abortion precedents in Dobbs v. Jackson Women's Health Organization, there has been a question on the minds of many women in this country: how will this decision affect me and my rights? As we have seen in the aftermath of Dobbs, many states have pushed for stringent anti-abortion measures seeking to undermine the foundation on which women's reproductive freedom had been grounded on for decades. This includes right here in Ohio, where Republican lawmakers have advocated on numerous occasions for implementing laws seeking to limit abortion rights, including a 6-week abortion ban advocated for and passed by the Ohio Republican legislature and signed into law by Ohio Governor Mike DeWine. Despite this particular ban being successfully challenged and stayed, significant problems persist regarding due process rights for women in Ohio, particularly in the aftermath of Justice Thomas's concurrence in Dobbs advising the Court to revisit prior precedents, such as Griswold v. Connecticut providing for the right to contraception. If the Court were to revisit and strike down Griswold, it would further undermine privacy and due process rights that have been granted to women across this country, including here in Ohio, for decades. Justice Thomas's concurrence, while merely dicta, encapsulates a Court that has become increasingly hostile to treasured fundamental rights for women, a hostility mirrored in numerous Republican legislatures, including right here in Ohio. [ABSTRACT FROM AUTHOR]

The article focuses on the national debate surrounding Critical Race Theory (CRT) and the swift response of state legislatures to enact Anti-Critical Race Theory (anti-CRT) bills. It explores various aspects of these laws that are relevant to K-12 education law scholars, attorneys, judges, and primary and secondary public school stakeholders.

111 State v. Gardner, the North Dakota Supreme Court considered whether North Dakota's child abuse statute created separate crimes or merely alternative methods of committing the singular offense of child abuse. The North Dakota Supreme Court ultimately held the statute created alternative methods of committing the singular crime of child abuse based on the plain language and legislative history of North Dakota Century Code Section 14- 09-22. But the North Dakota Supreme Court ended its analysis of the statute there and did not consider whether the statutory alternative methods violated the defendant's right to due process. Despite repeatedly analyzing whether statutes providing alternative methods of committing a singular crime, the North Dakota Supreme Court has yet to opine on the related-and necessary--question of when the creation of statutory alternative methods violates a criminal defendant's right to due process. As a result, a gap exists in North Dakota jurisprudence regarding when alternative method statutes adopted by the North Dakota Legislature will violate a criminal defendant's right to due process. This article outlines that gap, identifies potential answers provided by other courts, and analyzes how the resolution of this open question could affect "settled" North Dakota law. [ABSTRACT FROM AUTHOR]

The Federal Trade Commission (FTC) has proposed a rule to ban post-termination non-competition agreements between employers and employees, but it would not apply to agreements between franchisors and franchisees. Some states have already enacted bans or restrictions on non-competition agreements, particularly for low-wage employees, and recent court cases in Delaware have shown increased scrutiny of these agreements. The proposed rule is likely to face legal challenges and raises concerns about businesses' ability to protect trade secrets and confidential information. The FTC's proposed ban has both supporters and opponents, and there are questions about the agency's authority to enact such a ban. [Extracted from the article]

There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees' 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights of pretrial detainees. These circuits are under the impression that pretrial detainees have the same rights as convicted individuals, which is not the case, as pretrial detainees in fact have greater protections under the Fourteenth Amendment of the United States Constitution. The subjective standard falls short of protecting pretrial detainees and deprives them of rights derived under the Fourteenth Amendment, as the subjective standard stems from the Eighth Amendment, which is inapplicable to pretrial detainees as these individuals have yet to be convicted. The Supreme Court had the opportunity to resolve this issue but declined to do so. The Supreme Court should resolve this issue by applying the objective test to pretrial detainees' inadequate medical care claims brought under § 1983, which would not impede or diminish the rights of pretrial detainees that are guaranteed by the Fourteenth Amendment. [ABSTRACT FROM AUTHOR]

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment's Self-Incrimination and Due Process Clauses. Although the Supreme Court's self-incrimination cases have examined the privilege's historical roots in British and early American common law, the Court's jurisprudence has overlooked an important source of historical evidence: the long history of coerced and involuntary confessions extracted from enslaved persons by both governmental and private actors. The Article sheds new light upon this history by examining the privilege against self-incrimination from the perspective of enslaved persons and through the lens of the nation's Second Founding following the Civil War. Enslaved persons' understandings and experiences informed the Second Founding, which was intended to have a transformative effect upon the Constitution as a whole. This Article is the first to extensively examine firstperson slave narratives in order to draw upon enslaved persons' experiences for insights into self-incrimination doctrine. This Article first provides an overview of the theories underlying the privilege against self-incrimination, the background of the Self-Incrimination Clause, and the Supreme Court's self-incrimination jurisprudence. The Article next discusses the nation's Second Founding and the ways in which it changed our constitutional regime, both substantively and in principles of constitutional interpretation. The Article then examines enslaved persons' views and experiences regarding self-incrimination, both through antebellum judicial decisions involving enslaved persons and through enslaved persons' own first-person narratives. This evidence reveals that the Supreme Court's cramped and formalistic approach to selfincrimination is inconsistent with the post-Civil War Constitution's purposes and values. The Article concludes that our constitutional jurisprudence misses a great deal by failing to include in constitutional analysis evidence from the Second Founding and the experiences of enslaved persons and calls upon courts to take such evidence into account in interpreting the privilege against self-incrimination. [ABSTRACT FROM AUTHOR]

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judgemade rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and informal. Norms shape every aspect of the litigation system, from the division of labor between state and federal judges, to the application of Rule 11 sanctions, discovery technology, and multidistrict litigation. Yet the field of civil procedure has not fully grappled with these procedural norms in a systematic way nor appreciated the power of norm-making to resolve current problems. This Article explores the influence of norms in civil procedure with three goals in mind. First, the Article argues that a wide array of litigation practices, culture, and conventions constitute what it calls "procedural norms." Conceptualizing civil procedure in this manner allows the Article to examine how these norms are created, changed, codified, or replaced. It also reveals the importance of norm entrepreneurs and the problem of sticky norms in civil procedure. Second, the Article's core goal is to explain the role of norms in civil litigation--how they organize judicial administration, serve as structural features of our litigation system, and distribute power among different legal actors, including federal and state judges. A surprising amount of our civil procedure law boils down to unwritten practices and conventions that form a large body of procedural norms. It is these norms that often implement the abstract values of our procedural system. And, crucially, because norms can trump textual commands, changes to the FRCP may be less relevant without a deeper account of the norms behind them. Finally, the Article argues that a pivot to norm-making can be an important corrective to the ossification of the federal rulemaking process. Procedural norms can solve litigation problems because they are flexible and sometimes even subversive--they prioritize values that are contrary to the commitments of the FRCP. Ultimately, the Article seeks to make norms a first-class citizen in the study of civil procedure, on par with rules and case law in their importance and significance. [ABSTRACT FROM AUTHOR]

The International Financial Reporting Standards are voluntarily adopted by 167 countries, including countries in Africa, Australasia, Europe and South America. To maintain its legitimacy, the International Accounting Standards Board (IASB) must not be viewed as being unduly influenced by one group or jurisdiction. If the IASB's procedural legitimacy is compromised, it threatens their cognitive legitimacy and the global adoption of IFRS. Currently, most papers investigating the legitimacy of the IASB's due process employ simplified assessment tools. This paper investigates the relative influence of stakeholders and jurisdictions over the IASB's standard setting, using the method designed by Bamber and McMeeking (2016). This method does not treat all requests for changes equally, strengthening the validity and quality of the findings. In addition, this paper answers the call from Bamber and McMeeking (2016) to corroborate or refute their findings that not all stakeholders exerted equal influence and that comments from the UK are less influential than those from the US. Using a content analysis, this paper investigates the relative influence of jurisdictions and stakeholders on IFRS 10's development. The paper finds that, although no single stakeholder has a much greater influence over the IASB than others, there is some evidence of bias in a jurisdictional space in favour of the US and the UK with regard to the development of IFRS 10. [ABSTRACT FROM AUTHOR]

The article discusses the panel discussion that was held at the Brooklyn Law School in Brooklyn, New York on October 13, 2023. Topics covered included the First Amendment, substantive due process, constitutional criminal procedure, and the future trajectory of civil rights in the country. The attendees included Professor Susan Herman, Dean Erwin Chemerinsky of Berkeley Law School and Anthony Romero (Executive Director of the ACLU).

Since Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, many scholars have expressed concern over how the Dobbs decision may impact other privacy interests that previously have been recognized as protected rights under the Fourteenth Amendment's Due Process Clause. The substantive due process right associated with a parent's right to the care, control, and custody of their child, however, is situated differently in comparison to those rights presumably displaced by the Dobbs opinion. A parent's right, unlike other rights recognized under the substantive due process doctrine, is objectively deeply rooted in our nation's history and tradition, and is considered fundamental to the American concept of ordered liberty. This Note argues that even after Dobbs, parents continue to possess the right to the care, control, and custody of their child under the Fourteenth Amendment which includes the right to direct their child's medical care. Thus, statutes that criminalize the prescription of GnRH analogue therapy to minors unconstitutionally infringe on that right. GnRH analogue treatment is commonly referred to as "puberty blockers." The statutes criminalizing puberty blockers are not grounded in reliable science. Given that gender-affirming care solely affects the health of the individual receiving the care, the state lacks any compelling or important governmental interest that would justify such intrusion on this fundamental parental right. Further, the statutes are not narrowly tailored because they allow for GnRH analogue therapy to be prescribed to children in other medical contexts. Accordingly, the statutes criminalizing the prescription of puberty blockers to minors are unconstitutional under the Fourteenth Amendment's Due Process Clause. This Note analyzes the anti-transgender agenda that conservative lawmakers are pursuing from an anti-government perspective. After analyzing the medical science supporting the statutes, it becomes clear that the relied upon data is unreliable and that arguments in support of the statutes are pretextual. Conservative lawmakers are enacting anti-transgender legislation under the guise of "protecting" adolescents, but denying adolescents gender-affirming care is only harming them. To combat the statutes that criminalize gender-affirming care, with an emphasis on puberty blockers, this Note offers litigation strategies based in principles of constitutional law. This Note is a step towards protecting transgender, non-binary, and gender nonconforming youth from anti-transgender legislation and ensuring access to gender-affirming care. [ABSTRACT FROM AUTHOR]

Substantive due process provides heightened protection from government interference with enumerated constitutional rights and unenumerated--but nevertheless "fundamental"--rights. To date, the United States Supreme Court has never recognized any property right as a fundamental right for substantive due process purposes. But in Yim v. City of Seattle, a case recently decided by the Ninth Circuit, landlords and tenant screening companies argued that the right to exclude from one's property should be a fundamental right. Yim involved a challenge to Seattle's Fair Chance Housing Ordinance, which, among other things, prohibits landlords and tenant screening companies from inquiring about or considering a rental applicant's criminal history when making tenancy decisions. The plaintiffs contended that the Ordinance deprived them of their right to exclude by restricting a highly relevant consideration for tenancy decisions. This Comment argues against the existence of a fundamental right to exclude in the substantive due process context, at least as far as commercial property is concerned. At its core, property is a thing--a resource. When property is used commercially, whether as an apartment or office building or something else, its owner's power to limit access becomes the power to affect others engaged in the marketplace. This broad power over the public brings commercial property within the concern of the community. So, when the government places limits on the power to exclude from commercial property, it is regulating the marketplace and ensuring access is not being improperly denied to certain persons. Protecting the ability of its citizens to get by is inherently an exercise of legitimate government authority. As such, placing heightened substantive due process limits on the government's power over the right to exclude would have dramatic consequences for the operation of government and for some individuals' capacities to access shelter. It would seriously misapply and disfigure the law of substantive due process. The costs of recognizing a fundamental right to exclude from commercial property simply are not justified. [ABSTRACT FROM AUTHOR]

The article explores the issue of selective prosecution within the International Criminal Court (ICC) and its impact on the court's legitimacy. It highlights the fact that the ICC has primarily targeted African individuals, while cases involving Western powers have not progressed. This raises concerns about the court's impartiality and adherence to moral principles. The article discusses the concept of invidiously selective prosecution and the conditions that contribute to it, such as the influence of major powers and lack of resources. It argues that this selective prosecution undermines the equal application of justice and creates extreme inequalities in outcomes. The ICC's legitimacy is further questioned when it fails to condemn crimes committed by major powers or their allies. While the ICC has legitimacy in terms of its establishment and aims, its impartiality and legitimacy in operation and outcome are yet to be established. [Extracted from the article]

Can an individual who was held in pretrial detention but not criminally convicted as a result of fabricated evidence raise a due process claim under 42 U.S.C. § 1983? The answer is unclear. In 2017, the Supreme Court in Manuel v. City of Joliet held that claims for unlawful pretrial detention are governed by the Fourth Amendment. Since then, the Seventh Circuit has asserted that the Fourth Amendment is the only source of redress under § 1983 for wrongful pretrial detention caused by fabricated evidence. By contrast, several circuits have opined that Manuel does not foreclose the possibility that individuals held in pretrial detention due to fabricated evidence may raise § 1983 Fourteenth Amendment claims for due process injuries caused by fabricated evidence. These claims would be in addition to § 1983 Fourth Amendment claims for wrongful pretrial detention. A circuit split has thus emerged regarding what § 1983 claims may be brought by plaintiffs who were placed in pretrial detention because of fabricated evidence. This Comment argues that pretrial detention that is caused by fabricated evidence implicates both the Fourth Amendment and Fourteenth Amendment. Accordingly, injured parties should be entitled to raise claims under § 1983 based on violations of either (or both) of these amendments. [ABSTRACT FROM AUTHOR]

The deeply rooted in history test used by Justice Alito in Dobbs v. Jackson to overturn Roe v. Wade is anti-constitutional. In Dobbs, Alito concluded that, because a majority of states in 1868 criminalized abortion, abortion is not deeply rooted in history, and is therefore not a fundamental liberty under the Fourteenth Amendment Due Process Clause. However, relying on state laws in 1868 to interpret constitutional text not only has no basis in the Constitution, it goes against the fundamental nature of the Constitution as an integrated whole. What I call the Integrated Constitution is based on Chief Justice John Marshall’s theory of the Constitution as a great outline. For Marshall, the text of the Constitution must always be interpreted with the whole Constitution in mind, and any interpretation must be rejected if it disrupts the integrated functioning of the Constitution as a whole. Alito’s deeply rooted method of constitutional interpretation does exactly that in multiple ways and must ultimately be rejected by the Court. First, relying on state laws in 1868 to determine whether the Fourteenth Amendment Due Process Clause restricts state power undermines the core function of the entire Fourteenth Amendment as a systematic and permanent restriction of state power. Second, Alito’s use of nineteenth-century history to interpret due process is in direct conflict with the Court’s use of history to interpret equal protection in wellestablished equal protection precedent such as Frontiero v. Richardson and Loving v. Virginia. Third, relying on state laws enacted by state legislatures that excluded women and racial minorities from voting and holding elected office is inconsistent with the Fifteenth and Nineteenth Amendments. Fourth, relying on state laws to interpret the federal Constitution subverts the principle of federal supremacy over state laws. Finally, relying on state laws in 1868 to interpret the Constitution turns it into a rigid, predetermined legal code, which is precisely what the Constitution is not meant to be, per Chief Justice Marshall. For all of those reasons, Alito’s use of history in Dobbs is deeply anti-constitutional. [ABSTRACT FROM AUTHOR]

Control orders are restrictive measures placed on individuals that pose an identified threat to public safety as a component of domestic counterterrorism policy. Control orders and their compliance with International Human Rights Law have been the subject of extensive litigation within the European Court of Human Rights and domestic states courts. Controlling provisions are applied in either the preconviction or the post-release stage of a state's criminal procedure. Preconviction control orders face significant criticism for the potential conflicts with due process protections of the right to a fair trial and the broader right of liberty. This Note describes the current jurisprudence and analyzes its potential application to states that have yet to fully establish control order regimes. Because there is a lack of evidence indicating that preconviction control orders are necessary to prevent coordinated terrorist attacks, this Note finds that states should weigh the protection of individual liberties over the undetermined benefits of such restrictions. This Note concludes that states should only utilize pre-conviction control orders in the narrowest sense with ample oversight and judicial review mechanisms. It also concludes, however, that post-release control orders should be adopted into any system focused on terrorism prevention to prevent recidivism and ensure the reintegration of individuals previously engaged in terrorism-related activities into society. This Note is particularly pertinent to the number of Balkan states that are currently planning or considering implementing extensive control order regimes. [ABSTRACT FROM AUTHOR]

This article examines the development of the Protected Disclosures Act 2022, and evaluates the changes that it has made to previous legislation. It argues that it provides relatively few substantive improvements in the legal protections for disclosers and that even these are clouded by ambiguity. The article outlines alternative suggestions that were made throughout the passage of the Act and explores the extent to which it might be read as a placebo policy. It closes by looking at similar patterns of punch-pulling in other recent integrity initiatives. [ABSTRACT FROM AUTHOR]

The article argues that the Fourteenth Amendment's Due Process Clause should protect prisoners from isolated disclosures which means that prisoners should have a section 1983 cause of action against guards or other prison officials who disclose their HIV/AIDS status in a gratuitous manner. Topics include existing legal framework for constitutional privacy rights and why other circuits should not follow the Fourth Circuit's holding concerning the privacy rights of incarcerated people.

The Supreme Court has long held that children enjoy a range of constitutional rights and has emphasized the critical importance of many of these rights to children’s development as democratic citizens. At the same time, the Court has been resolute in its protection of parents’ near-absolute authority to control the upbringing of children. Indeed, the Supreme Court’s steadfast commitment to broad parental rights under the Due Process Clause effectively diminishes, if not outright nullifies, the Court’s stated protections for children as rights-bearing citizens. The stakes for children have only heightened as parents increasingly seek to exercise their authority to shield their children from certain ideas, such as ideas about racial injustice or gender inequality, that are essential to their development as full citizens in a pluralistic, democratic polity. This Article offers a new framework for children in constitutional law, one that elevates children’s rights as developing citizens by recognizing parental duties to respect those citizenship rights. The in loco reipublicae framework positions parents as standing in place of the state with constitutional duties to ensure children’s acquisition of the knowledge and skills needed for citizenship in our democratic polity. Parental in loco reipublicae duties are rooted in a potent constitutional mixture of parents’ unique custodial authority over children and children’s own citizenship rights. While children’s free speech rights are not the only constitutional rights that protect children’s citizenship interests, they are a powerful exemplar of parental duties to ensure children’s access to ideas outside the home. In articulating a theory of children’s citizenship rights and parents’ corresponding duties, the in loco reipublicae framework aims to fortify the parent-child relationship while, at the same time, respecting children as developing democratic citizens in their own right. [ABSTRACT FROM AUTHOR]

Before their executions, condemned people suffer intensely, in solitude, and at great length. But that suffering is not punishment--especially not the suffering on American-style death rows. In this Article, I show that American institutions administer pre-execution confinement as nonpunitive detention, and I explain the consequences of that counterintuitive status. A nonpunitive paradigm curbs, at least to some degree, the dehumanization, neglect, and isolation that now dominate life on death row. It is also the doctrinal solution to a longstanding puzzle involving confinement, execution, and the Eighth Amendment. To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself. Most deathsentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation. By the time the state executes its condemned prisoners, they will have spent about two decades in such conditions--up from two years in 1960. The state distributes suffering across this prisoner cohort in ways that bear little relationship to criminal blameworthiness. Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment. Virtually everyone makes the punitive assumption, but there are two reasons rooted in penal theory why they should not. First, confinement before execution does not meet consensus criteria for punishment. It is instead suffering collateral to the state's interest in incapacitating those who face execution. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified. More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would be distributed across the death-sentenced prisoner cohort arbitrarily. There is a well-developed body of constitutional law capable of absorbing a nonpunitive version of pre-execution confinement. Under that law, when the state detains people primarily to incapacitate them, that detention is regulatory--not punitive. Due process, rather than the Eighth Amendment, constrains regulatory detention. A nonpunitive approach would reduce unnecessary suffering because due process rules more stringently constrain the state's treatment of its prisoners. Such an approach would also give the U.S. Supreme Court better answers to the difficult Eighth Amendment questions that have vexed the Justices for decades. [ABSTRACT FROM AUTHOR]