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The Fourteenth Amendment's Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights., This Article presents a new lens through which to read the Fourteenth Amendment-new to modern lawyers, but not to the Amendment's drafters. That lens is general law, the unwritten law [...]

TABLE OF CONTENTS INTRODUCTION 749 I. THE LANDSCAPE OF FEDERAL EXPUNGEMENT LAW 751 A. The Federal Youth Corrections Act and Its Repeal 752 B. Gaps in Federal Expungement Law Today [...]

After an appellate court announces its opinion and judgment, it issues the 'mandate, ' returning jurisdiction to the lower court and commanding it to implement the judgment. In the time between judgment and mandate, appellate judges have power to 'hold' the mandate, or to order that the mandate not issue until further notice. This is usually done because the judge--who may or may not be a member of the original panel--intends to seek revision of the opinion or request that the case be reheard by the en banc court. But courts typically do not notify the parties when a judge holds the mandate. This leads to inaccuracy in legal writing, with parties unknowingly citing cases that may cease to be good authority. A survey of the relevant data shows that when a judge holds the mandate, the original panel opinion is vacated 62.1% of the time. The lack of information also takes litigants out of the equation, depriving courts of the ordinary benefits of party presentation. In addition to introducing the basic nature of an appellate court mandate, this Article advocates for the adoption of local rules that provide for notification on the public docket when a judge holds the mandate on his or her own motion., TABLE OF CONTENTS INTRODUCTION 156 I. BACKGROUND ON MANDATES 158 A. Mandates Generally 158 B. Different Forms of Mandates 161 C. Federal Rules 168 D. Local Rules 171 II. PROBLEMS [...]

The Supreme Court's expansion of the public use doctrine authorizes takings for economic development and permits the transfer of private property from individuals to private developers. Because the judiciary defers to the legislature on determinations of public use, courts fail to intervene even when individuals are displaced to enable highly speculative or infeasible urban development projects. To prevent the needless displacement of individuals, courts should employ a four-factor feasibility assessment before permitting the use of eminent domain for economic development projects, and the legislature should grant a right of first refusal to prior owners and require community approval prior to permitting local governments to exercise eminent domain. This Note explores the significant harm that results from failed urban development projects and suggests three key responses for the judiciary and the legislature. First, the Note provides a brief overview of the expansion of the public use requirement of the Takings Clause of the Fifth Amendment. Second, the Note presents case studies of 12 cases across ten states that demonstrate the pervasiveness and severity of the problem and provides an in-depth examination of two communities, New London and Poletown. Finally, the Note examines potential accountability mechanisms the legal system should leverage to shift the burden of failed urban development projects from individuals and communities to developers., I. INTRODUCTION 276 II. BACKGROUND 278 III. THE STATE OF THE PUBLIC USE REQUIREMENT IN ECONOMIC DEVELOPMENT TAKINGS 278 IV THE SCOPE OF EMINENT DOMAIN IN FAILED ECONOMIC DEVELOPMENT PROJECTS [...]

Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court, or to punt federal cases to administrative agencies that may lack the power or will to resolve the underlying issues in the case. These efforts have largely been successful. This Article offers a panoramic view of how over recent decades federal courts have acquiesced in a corporate-driven effort to leverage jurisdictional doctrines to their unique private advantage, and contends that together, these doctrinal changes constitute an inflection point in U.S. law and procedure. We argue that corporate adjudicatory practice has slanted judicial power in favor ofderegulatory efforts that undermine legal commitments to equality, dignity, and participation. The shifts in jurisdiction, which may seem to be merely technical and apolitical, are a core part of the architecture of what we call the oligarchic courthouse--one where courts as public institutions transform their procedures to meet private, corporate interests at the expense of public goals, thereby cementing economic power and translating it into concentrated political power that undermines the possibility of robust democratic life. The trends we describe in federal subject matter jurisdiction resonate with earlier corporate battles at the turn of the twentieth century. But the construction of today's oligarchic courthouse holds implications for democracy that are not simply a reprise of earlier corporate efforts. To show the scope of the implications, the Article steps back and clarifies why jurisdiction matters to democracy. Drawing on law and social mobilization literature, we argue that jurisdiction functions as a political resource that facilitates opportunities for democratic contestation and both reflects and shapes the openness and closedness of the state. Having centered jurisdiction in a larger account of democracy, we explore how the oligarchic courthouse, by entrenching economic power and narrowing participatory options for workers, consumers, and other less-resourced litigants, can be nested in a larger account of democratic decline in the United States., TABLE OF CONTENTS INTRODUCTION I. JURISDICTIONAL SHIFTS A. Lock Out: Arbitration 1. 'Contracting' Around Court Jurisdiction 2. Aggregate Litigation and Restricted Judicial Power 3. Winnowing Appellate Jurisdiction B. Lock In: [...]

In the United States Supreme Court's 2022 Shinn v. Ramirez opinion, the Court reversed two Ninth Circuit decisions granting two death row prisoners habeas relief based upon evidence that each received constitutionally ineffective trial counsel. The Court relied upon the Antiterrorism and Effective Death Penalty Act to bar the federal courts from considering each petitioner's evidence of ineffective assistance of their trial counsel since that evidence was not first presented in state court. In emphasizing the need for finality and federalism, Shinn effectively overruled the Supreme Court's decision in Martinez v. Ryan, which allowed habeas petitioners to raise, for the first time, ineffective assistance of trial counsel claims in federal court if the failure to raise the claim in state court was caused by the ineffective assistance of postconviction counsel. The Court's holding in Shinn underscores the need for congressional action and additional reform in habeas proceedings to ensure every defendant is afforded a remedy that protects their right to effective trial counsel guaranteed under the Sixth Amendment., Contents I. INTRODUCTION 546 II. BACKGROUND 548 A. LIMITING ACCESS TO FEDERAL HABEAS CORPUS: AEDPA B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS IN POSTCONVICTION PROCEEDINGS 552 C. MARTINEZ V. RYAN AND [...]

The U.S. Supreme Court has turned its attention back to the law of habeas corpus, with a string of new decisions that emphasize the limited scope of federal habeas relief. But focusing one's sights on only those decisions would overlook what has transpired at the Supreme Court in recent years in state habeas cases coming directly to the Supreme Court from the state postconviction courts. Montgomery v. Louisiana, in particular, shifted the division of power between the Supreme Court and state postconviction courts for questions conventionally considered to be questions of state law. Montgomery, on the surface, is a decision about retroactivity and the effect of new Supreme Court decisions on old state-court criminal sentences. Must those new Supreme Court decisions be a basis for retrospectively invalidating final sentences, even decades later? Montgomery says yes, at least for some new Supreme Court decisions. Below the surface, Montgomery rests on an unstated assumption that where there is a violation of a constitutional right, as revealed by a new Supreme Court decision, a state postconviction court must provide a collateral remedy, at least in some circumstances. This article examines that assumption, its seeming inconsistency with the Supreme Court's recent federal habeas decisions, and its broader implications for what the Constitution has to say about constitutionally required collateral remedies in state and federal habeas courts., TABLE OF CONTENTS ABSTRACT 1077 TABLE OF CONTENTS 1078 I. INTRODUCTION 1079 II. HISTORICAL HABEAS REMEDIES AND NEW SUPREME COURT DECISIONS 1088 A. Early Federal Habeas Review and the Siebold [...]

This Note explores the tension between the fundamental right to interstate travel and state abortion restrictions limiting out of state travel for abortions. Legal scholars long contemplated what would happen if Roe and Casey were overturned. That day has come, and states are now free to regulate abortion subject to rational basis review... unless another fundamental right is implicated. In his Dobbs concurrence, Justice Kavanaugh cited the fundamental right to interstate travel as justification for barring states from banning out of state travel for abortions. Although he cited no precedent for his statement, he seemed to believe this was an open-and-shut question. This Note will seek to examine whether the fundamental right to interstate travel can protect the ability to travel between states for an abortion. If it does, then state abortion restrictions should still be subject to strict scrutiny. Even still, states may be able to put forth compelling justifications to support their laws. To test this argument, this Note will examine Idaho's HB 242--the nation's first law limiting interstate travel for abortions. Though this law has not yet been challenged, we can expect that it will soon make its way before the courts. Even though HB 242 regulates abortions, its impact on interstate travel will likely still make it subject to strict scrutiny., INTRODUCTION 1 176 I. BACKGROUND & HISTORY OF THE LAW 179 A. HISTORY OF THE FUNDAMENTAL RIGHT TO INTERSTATE TRAVEL 179 1. The Passenger Cases 180 2. United States v. [...]

The 2020 Land and Titles Court (LTC) reforms in Samoa were a catalyst for the constitutional crisis that sent shockwaves through the Pacific. This article analyses what the debate surrounding these reforms, as well as the reforms themselves, reveal about fa'amatai (Samoa's indigenous political system). Due to the reforms, LTC decisions can no longer be appealed to the Supreme Court, removing the ability for customary decisions to be balanced against constitutional individual rights. The debate around these reforms often hinged on whether constitutional rights impeded the exercise of customary authority. This article identifies the different hierarchical structures of customary authority in Samoa and articulates how they have evolved to accommodate the LTC and constitutional rights. It argues that, as fa'amatai has evolved to survive colonisation, the LTC itself and to some degree individual constitutional rights have come to form a core part of the fa'amatai today., I INTRODUCTION Fa'amatai can be understood as the indigenous political system of Samoa that governs customary hierarchies between indigenous chiefs, their families and their village. (1) Fa'amatai is an integral [...]

Diamonds may be forever, (1) but--except for the Supreme Court (2)--federal courts can come and go. And go they do, even though courthouse architecture and choice of construction materials typically [...]

The Supreme Court's recent decision in Shinn v. Ramirez, 142 S. Ct. 1718 (2022), diminished the role of federal courts in protecting defendants' Sixth Amendment right to effective assistance of counsel by limiting when a defendant can raise an ineffective-assistance-of-counsel (IAC) claim in federal court. Defendants in states like Arizona and Texas--which bar raising IAC claims until state habeas proceedings--will be unable to effectively litigate those Sixth Amendment claims in federal court. In other states that do not defer IAC claims, a defendant has the right on appeal (1) to raise an IAC claim regarding their trial counsel and (2) to raise that claim with the constitutional guarantee of the effective assistance of their appellate counsel. But in states like Arizona and Texas, the first right is deferred to state habeas, and the second right--because there is no constitutional right to effective assistance of counsel in state habeas proceedings--is extinguished altogether. This Note considers what Shinn portends for defendants in states that defer IAC claims to state habeas proceedings. The Note argues that, while there may be no right to a remedy in federal court, the Constitution requires that state courts fill the vacuum left by the departure of the federal courts. The argument proceeds in three steps. First, where defendants have a Sixth Amendment right to counsel, they may assert that right by raising an IAC claim. Second, that right includes presenting evidence in support of the IAC claim. Finally, when a state defers IAC claims from a proceeding in which the defendant ordinarily would have a right to effective assistance of counsel to one where the defendant ordinarily lacks such a right, for example state habeas proceedings, the state must provide the defendant with effective assistance of counsel at that subsequent proceeding. If all three of these propositions are true, this Note argues defendants in states that defer IAC claims have the right to an additional forum: one where they can raise an IAC claim about the lawyer that first raised an IAC claim on their behalf. Providing such a forum would restore defendants to the same constitutional position as defendants in other states. While the federal courts used to provide this forum, after Shinn v. Ramirez, they have bowed out. The task now falls to the state courts., Introduction I. Doctrinal Background on the Right to Effective Assistance of Counsel A. Effective Assistance of Counsel B. Collateral Review Overview C. A Right Deferred II. An Unconstitutional Situation A. [...]

The question whether the term 'set aside' in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally--as opposed to setting aside the rule solely as to the plaintiffs--is a significant and contested one. This Essay traces the history of the statutory term 'set aside' from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA. During this era, Congress repeatedly used the term 'set aside' in agency review statutes. This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created by the law of judgments and equity. The traditional approach limited the ability of a stranger to litigation to enforce a judgment previously obtained by another, even if the stranger proceeded on the same legal theory. The Essay explains how that traditional approach continues to apply in challenges to agency 'adjudications' and offers some reasons for why the same approach ought to apply in challenges to those agency actions that are categorized as 'rulemakings.', INTRODUCTION My goal in this Essay is to clarify how one corner of the system of administrative remedies developed and how it functions in the present day. The general topic [...]

The courts' growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern, that such injunctions circumvent dialogue among the circuits, promote forum shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA). This Article takes issue with these authorities. It argues that the courts' use of the APA to vacate a rule as a whole--as opposed to merely enjoining application of the rule to an individual plaintiff---serves vital functions in maintaining judicial control over agency discretion. The Article goes on to argue that such relief is consistent with the language and legislative background of the APA. However, courts have discretion as to whether they will make use of this remedy in individual cases. Starting from these premises, the Article surveys factors that can militate for or against universal relief in particular circumstances. It also suggests possible doctrinal adaptations and structural reforms that could contribute to preventing overuse of universal injunctions., INTRODUCTION 1998 I. THE ADMINISTRATIVE PROCEDURE ACT AND ITS INTERPRETATION 2002 II. THE NEED FOR UNIVERSAL RELIEF IN JUDICIAL REVIEW OF RULES 2005 III. REVISIONIST ACCOUNTS OF [section] 706 AND [...]

'The dance of legislation' is a metaphor to capture the parliamentary-judicial dynamic in the creation, interpretation and application of legislation. Contrary to the edicts of classical sovereignty doctrine, Parliament is not the sole actor in (what I term) 'law creation through legislation'. Sovereignty doctrine champions the exclusivity of Parliament in enacting legislative text and discounts any constitutive role of the courts in bringing meaning to the legislative text. The courts deploy interpretive techniques that fix legal meaning in accordance with a range of institutional norms and understandings. These techniques debunk the notion that Parliament's word is the start and end point of what is law, irrespective of what the courts say is the law. The judicial role extends beyond filling gaps in statutory meanings: it extends even to the reconstruction of statutory meaning where institutional norms commend activist interpretive method. The symbiosis that joins the branches lies at the heart of the legislative enterprise. The parliamentary- judicial relationship is an interdependent, collaborative one that draws upon the distinctive, role-specific function of each branch. The quip 'it takes two to tango' speaks perfectly to the dance of legislation imagined in this article., I INTRODUCTION The doctrine of parliamentary sovereignty is a staple of the law school curriculum. Parliament is the highest law-making authority and its enactments are the highest source of law. [...]

One of the 'oldest and most venerable debates in U.S. constitutional law' concerns the President's ability to fire executive branch officers. (1) That debate shows little sign of subsiding. In [...]

In its recent decision of Commonwealth v AJL20, the High Court of Australia determined that the prolonged detention of an 'unlawful non-citizen' under the Migration Act was lawful. This was despite an accepted failure by the executive to remove him from Australia 'as soon as reasonably practicable' as required by the legislation. In determining whether the circumstances of his detention went beyond established limits derived from ch III of the Constitution, the Court applied a 'legislation-centric approach' in which constitutional limits apply only at the level of statute, and not at the level of executive action taken pursuant to such statute. In this article, I argue that the extension of the legislation-centric approach--previously utilised only in constitutional freedoms' cases--to the ch III context is problematic. Courts conducting judicial review of administrative action must have the capacity to apply the constitutional limits derived from ch III directly, without consequently invalidating entire statutory provisions. I then explore the capacity of contemporary administrative law to do so, finding that in many immigration detention cases, such limits can be conceptualised within the requirement that executive officers act for a proper purpose., CONTENTS I Introduction II The Legislation-Centric Approach to Constitutional Freedoms III Constitutional Limits on Executive Detention A Detention as Exclusively Judicial B The Immigration Exception C Habeas Corpus IV AJL20 [...]

This paper argues that to reduce jury-induced wrongful convictions, reforms must be targeted towards guiding prosecutorial discretion. The Crown has the ultimate say on whether to allow a judge-alone trial, making prosecutorial decision-making the most practical avenue to address the risks inherent in jury verdicts. Part I examines research on the accuracy of jury verdicts, challenges assumptions on jury secrecy rules in Canada, and identifies practical difficulties in modifying them. Part II explores the unequal appellate review of judge-alone and jury verdicts, and Part III discusses the mandatory jury trial provisions for severe offenses, which may increase the risk of wrongful convictions. Finally, Part IV examines the Crown's role in consenting to judge-alone trials, and proposes policy modifications informed by wrongful convictions risks. KEYWORDS jury secrecy; wrongful convictions; Charter s. 11(f); prosecutorial discretion; judge-alone trials; Criminal Code s. 469, INTRODUCTION 192 I IN CONVERSATION WITH 'REVIEWING OUR PEERS': THE LAY JURY, 193 JURY SECRECY, AND WRONGFUL CONVICTIONS A. Practical Concerns 198 B. Jurisprudential Concerns 199 II THE APPELLATE STANDARD [...]

The development of computerized tools that lead to decision-making processes which apply locally defined parameters poses many questions about democracy. These questions stem from our very conception of the state and its role, going beyond the boundaries of typical administrative law. According to a popular notion that permeates the practices of most executive branches in liberal political regimes, democratic concerns are now competing with managerial concerns. In order to analyze this idea, we must study the implementation of algorithms in administrative decision-making, underscoring both the changes to the characterization of administrative decisions and the questions raised about an administrative judicial review of litigation. To summarize a French administrative law judge's review so far, the judge began by assessing the legality of using algorithms in administrative procedures. Secondly, the judge reviewed the legality of making administrative decisions on the basis of an algorithm. Three issues now appear to be guiding the future of algorithm-based administrative decisions: (1) the security of legal transactions; (2) the compensation for harm or damage caused by the algorithms, and (3) the degree of in-depth review by the administrative judge., INTRODUCTION To confine ourselves to the most general administrative definition, an algorithm constitutes 'the study of problem-solving by implementing series of elementary operations according to a predefined process culminating in [...]

In August 2022, the Oregon Court of Appeals in Justice v. Vercher, 518 P.3d 131 (Or. App. 2022), decided whether a horse could sue to vindicate rights in court based [...]

This article examines the various ways that prosecution decisions can be challenged and, in particular, the extent to which prosecution decisions might be susceptible to judicial review. The focus is on the decision to commence or not to commence a prosecution. First considered is the extent to which that decision can be challenged pursuant to conventional criminal procedures. The availability of tort-based civil proceedings and the extent to which prosecution decisions are susceptible to judicial review are then considered. It is argued that providing adequate avenues to challenge prosecution decisions needs to be seen in the broader context of (a) the need to balance prosecutorial independence and prosecutorial accountability and (b) the separation of powers doctrine., I INTRODUCTION Public prosecutors possess and exercise some of the most important decision-making powers in the criminal justice system. Prosecutors decide, for example, whether to commence a criminal prosecution, whether [...]

Introduction 222 I. Types of Conflicts of Interest 223 A. Duties to Another Client 224 i. Multiple Representation of Codefendants 224 ii. Duties to Another Client Outside of Multiple Representation [...]