Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0009
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The ...
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This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The original Constitution contained several explicit restrictions on state power. In the early years of the Republic, federal courts actively scrutinized state enactments to ensure they did not violate these expressed prohibitions, especially the Contracts Clause. When it came to legislation not implicating these prohibitions, however, the courts deferred to states in their exercise of their police power. The chapter first considers what the term “privileges or immunities” encompasses before discussing the Supreme Court decision in the so-called Slaughter-House Cases, which set aside the original meaning of the Privileges or Immunities Clause. It then looks at the Due Process Clauses and shows that the due process of law includes judicial review.Less
This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The original Constitution contained several explicit restrictions on state power. In the early years of the Republic, federal courts actively scrutinized state enactments to ensure they did not violate these expressed prohibitions, especially the Contracts Clause. When it came to legislation not implicating these prohibitions, however, the courts deferred to states in their exercise of their police power. The chapter first considers what the term “privileges or immunities” encompasses before discussing the Supreme Court decision in the so-called Slaughter-House Cases, which set aside the original meaning of the Privileges or Immunities Clause. It then looks at the Due Process Clauses and shows that the due process of law includes judicial review.
López Ramón and Michael A. Toman
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780199298006
- eISBN:
- 9780191603877
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199298009.003.0008
- Subject:
- Economics and Finance, Development, Growth, and Environmental
The failure of public good provision in developing countries implies that many environmental and natural resource allocation problems that have been solved in developed countries, such as water ...
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The failure of public good provision in developing countries implies that many environmental and natural resource allocation problems that have been solved in developed countries, such as water pollution from sewage and indoor air pollution from cooking fires, continue to loom large. Decentralization and transparency in decision making, due process, and stakeholder participation in reform are needed to address these shortfalls. Because of poverty, efficiency is crucial to minimize overall costs. This, together with the wide dispersion in the distribution of pollution between polluters, speaks in favor of the use of flexible instruments such as information and market based mechanisms. At the same time, risk aversion, poverty, and unequal distribution imply that considerable attention must be paid to the distribution of costs and to a participatory approach in policy design.Less
The failure of public good provision in developing countries implies that many environmental and natural resource allocation problems that have been solved in developed countries, such as water pollution from sewage and indoor air pollution from cooking fires, continue to loom large. Decentralization and transparency in decision making, due process, and stakeholder participation in reform are needed to address these shortfalls. Because of poverty, efficiency is crucial to minimize overall costs. This, together with the wide dispersion in the distribution of pollution between polluters, speaks in favor of the use of flexible instruments such as information and market based mechanisms. At the same time, risk aversion, poverty, and unequal distribution imply that considerable attention must be paid to the distribution of costs and to a participatory approach in policy design.
James J. Tomkovicz
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195369243
- eISBN:
- 9780199893409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195369243.003.0014
- Subject:
- Law, Constitutional and Administrative Law
This chapter explains the Due Process Clause-based exclusion doctrine barring eyewitness identifications produced by unnecessarily suggestive official procedures. This suppression mandate was first ...
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This chapter explains the Due Process Clause-based exclusion doctrine barring eyewitness identifications produced by unnecessarily suggestive official procedures. This suppression mandate was first announced in Stovall v. Denno in 1967. It was last considered by the Supreme Court in Manson v. Brathwaite, a significantly restrictive 1977 ruling. The due process bar to identification evidence is a personal trial right designed primarily to avoid the conviction of innocent persons based on misidentification resulting from official suggestion. Both identifications made at unnecessarily suggestive sessions and any later identifications by witnesses exposed to that suggestion are barred. Nonetheless, any identification that the government proves to be reliable—that is, any identification not involving a substantial likelihood of misidentification—is admissible. The rule operates in criminal trials. It is uncertain whether derivative nonidentification evidence is barred and whether only those who are identified have “standing” to bar the evidence. The legitimacy of many exclusionary rule exceptions is uncertain.Less
This chapter explains the Due Process Clause-based exclusion doctrine barring eyewitness identifications produced by unnecessarily suggestive official procedures. This suppression mandate was first announced in Stovall v. Denno in 1967. It was last considered by the Supreme Court in Manson v. Brathwaite, a significantly restrictive 1977 ruling. The due process bar to identification evidence is a personal trial right designed primarily to avoid the conviction of innocent persons based on misidentification resulting from official suggestion. Both identifications made at unnecessarily suggestive sessions and any later identifications by witnesses exposed to that suggestion are barred. Nonetheless, any identification that the government proves to be reliable—that is, any identification not involving a substantial likelihood of misidentification—is admissible. The rule operates in criminal trials. It is uncertain whether derivative nonidentification evidence is barred and whether only those who are identified have “standing” to bar the evidence. The legitimacy of many exclusionary rule exceptions is uncertain.
Giacinto della Cananea
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0002
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Due to globalization, States are increasingly affected by external factors, whilst at the same time influencing the behaviour of individuals and firms, including foreign investors. Their decisions ...
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Due to globalization, States are increasingly affected by external factors, whilst at the same time influencing the behaviour of individuals and firms, including foreign investors. Their decisions produce binding effects, for example, when an authorization is issued or refused. The question thus arises whether procedural safeguards aiming at achieving due process of law may be regarded as minimum standards that must be observed. This chapter first looks at the history of ideas and argues that the works of Montesquieu, Smith, and Tocqueville show that the idea of general principles of law is not necessarily in contrast with the recognition of particularities. Then, it observes that, as far as administrative adjudication is concerned, some common standards emerged within the OECD, both as a result of common developments and as a consequence of the action of multilateral institutions. It suggests, therefore, that an ‘echelle des garantie’ may be identified.Less
Due to globalization, States are increasingly affected by external factors, whilst at the same time influencing the behaviour of individuals and firms, including foreign investors. Their decisions produce binding effects, for example, when an authorization is issued or refused. The question thus arises whether procedural safeguards aiming at achieving due process of law may be regarded as minimum standards that must be observed. This chapter first looks at the history of ideas and argues that the works of Montesquieu, Smith, and Tocqueville show that the idea of general principles of law is not necessarily in contrast with the recognition of particularities. Then, it observes that, as far as administrative adjudication is concerned, some common standards emerged within the OECD, both as a result of common developments and as a consequence of the action of multilateral institutions. It suggests, therefore, that an ‘echelle des garantie’ may be identified.
Mel A. Topf
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199756766
- eISBN:
- 9780199918898
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756766.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book is the only comprehensive treatment of the history and controversies, the law and theories, about U.S. state supreme court advisory opinions. This significant but little studied area of ...
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This book is the only comprehensive treatment of the history and controversies, the law and theories, about U.S. state supreme court advisory opinions. This significant but little studied area of state constitutional law has no parallel in federal law (which bars federal courts from giving advisory opinions). Just ten states permit such advising (many others have rejected it), but advisory opinions have been attacked because they clash with fundamental doctrines of American constitutionalism, including separation of powers, due process, judicial review, judicial independence, and, especially, judicial supremacy. This book offers a narrative of the attacks on state supreme court advisory opinions, telling how the law of advisory opinions arose in response to the attacks, resulting in an elaborate but not entirely successful jurisprudence of advisory opinions. This book tells of the attempts to adopt and defend advisory opinions, including New Deal–era proposals to amend the U.S. Constitution to require the U.S. Supreme Court to issue them. It tells also of the persistent and uneasy relation between advisory opinions and the power of judicial review (arguing that advising is in fact a distinct political power in its own right), and tells as well of their effects on judicial independence and the ways that they reinforce judicial supremacy.Less
This book is the only comprehensive treatment of the history and controversies, the law and theories, about U.S. state supreme court advisory opinions. This significant but little studied area of state constitutional law has no parallel in federal law (which bars federal courts from giving advisory opinions). Just ten states permit such advising (many others have rejected it), but advisory opinions have been attacked because they clash with fundamental doctrines of American constitutionalism, including separation of powers, due process, judicial review, judicial independence, and, especially, judicial supremacy. This book offers a narrative of the attacks on state supreme court advisory opinions, telling how the law of advisory opinions arose in response to the attacks, resulting in an elaborate but not entirely successful jurisprudence of advisory opinions. This book tells of the attempts to adopt and defend advisory opinions, including New Deal–era proposals to amend the U.S. Constitution to require the U.S. Supreme Court to issue them. It tells also of the persistent and uneasy relation between advisory opinions and the power of judicial review (arguing that advising is in fact a distinct political power in its own right), and tells as well of their effects on judicial independence and the ways that they reinforce judicial supremacy.
James J. Tomkovicz
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195369243
- eISBN:
- 9780199893409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195369243.003.0010
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses the Due Process Clause and Fifth Amendment Privilege-based doctrine excluding coerced confessions from criminal trials. It traces the history of this evidentiary bar from the ...
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This chapter discusses the Due Process Clause and Fifth Amendment Privilege-based doctrine excluding coerced confessions from criminal trials. It traces the history of this evidentiary bar from the late 19th century to modern times. Because the use of a coerced confession to convict a defendant violates that defendant's right to due process of law and his right not to be compelled to be a witness against himself, an accused who was forced to admit his guilt has a personal right to the suppression of that admission. The deterrence of coercion may provide supplemental support. The bar applies in criminal trials and sentencing proceedings, and it is likely that only those coerced into making disclosures have “standing” to bar those disclosures. Derivative evidence—evidence found by exploiting coerced confessions—is presumptively inadmissible. Some potential exceptions to this exclusion doctrine are constitutionally indefensible, while the merits of other exceptions are arguable and unsettled.Less
This chapter discusses the Due Process Clause and Fifth Amendment Privilege-based doctrine excluding coerced confessions from criminal trials. It traces the history of this evidentiary bar from the late 19th century to modern times. Because the use of a coerced confession to convict a defendant violates that defendant's right to due process of law and his right not to be compelled to be a witness against himself, an accused who was forced to admit his guilt has a personal right to the suppression of that admission. The deterrence of coercion may provide supplemental support. The bar applies in criminal trials and sentencing proceedings, and it is likely that only those coerced into making disclosures have “standing” to bar those disclosures. Derivative evidence—evidence found by exploiting coerced confessions—is presumptively inadmissible. Some potential exceptions to this exclusion doctrine are constitutionally indefensible, while the merits of other exceptions are arguable and unsettled.
D. J. Galligan
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198256762
- eISBN:
- 9780191681660
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256762.001.0001
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
Due process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of ...
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Due process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this book, the author offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework. In landmark decisions such as Ridge v. Baldwin (1968) the courts in Britain and other parts of the Commonwealth have begun to recognize the importance of procedural fairness across a broad spectrum of official powers and decisions. Principles have begun to emerge, and yet the courts have not so far developed an approach that is entirely adequate to the task. In this book, the author traces the development of these principles within a framework which includes analysis and critique of legal developments in the major common law jurisdictions, and which relates these developments to similar ideas under both the European Convention on Human Rights and the American Constitution.Less
Due process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this book, the author offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework. In landmark decisions such as Ridge v. Baldwin (1968) the courts in Britain and other parts of the Commonwealth have begun to recognize the importance of procedural fairness across a broad spectrum of official powers and decisions. Principles have begun to emerge, and yet the courts have not so far developed an approach that is entirely adequate to the task. In this book, the author traces the development of these principles within a framework which includes analysis and critique of legal developments in the major common law jurisdictions, and which relates these developments to similar ideas under both the European Convention on Human Rights and the American Constitution.
Lackland H. Bloom
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195377118
- eISBN:
- 9780199869510
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377118.003.0005
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the Court's use of tradition and practice in constitutional interpretation. First, it looks at how the Court has relied on longstanding congressional or executive practice ...
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This chapter examines the Court's use of tradition and practice in constitutional interpretation. First, it looks at how the Court has relied on longstanding congressional or executive practice especially in the area of separation of powers. Next it considers three specific areas of law in which tradition and practice has played a significant role—the First Amendment public forum doctrine, the Establishment Clause, and due process of law. Then, it discusses several issues that arise with respect to tradition and practice including reliance on international practice, the appropriate level of generality to describe a practice, evolving standards, and a living constitution. Finally, it explores the Court's treatment of changing, declining or the absence of traditions and practices as well as the evaluation of them.Less
This chapter examines the Court's use of tradition and practice in constitutional interpretation. First, it looks at how the Court has relied on longstanding congressional or executive practice especially in the area of separation of powers. Next it considers three specific areas of law in which tradition and practice has played a significant role—the First Amendment public forum doctrine, the Establishment Clause, and due process of law. Then, it discusses several issues that arise with respect to tradition and practice including reliance on international practice, the appropriate level of generality to describe a practice, evolving standards, and a living constitution. Finally, it explores the Court's treatment of changing, declining or the absence of traditions and practices as well as the evaluation of them.
Panagiotis Delimatsis
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199533152
- eISBN:
- 9780191714528
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533152.003.0004
- Subject:
- Law, Public International Law
This chapter untangles the issue of regulatory diversity in services trade. After a review of the rationales behind governmental intervention, it provides a thorough analysis of the GATS provisions ...
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This chapter untangles the issue of regulatory diversity in services trade. After a review of the rationales behind governmental intervention, it provides a thorough analysis of the GATS provisions dealing with domestic regulation — notably Article VI thereof — and their relationship with the other GATS provisions dealing more directly with market opening and services trade liberalization such as Articles XVI on market access and XVII on national treatment. In addition, the chapter identifies the rationale behind extensive regulatory intervention in the area of services. In this regard, useful tools for the need of governmental intervention, such as cost-benefit analysis or regulatory impact assessment, are discussed.Less
This chapter untangles the issue of regulatory diversity in services trade. After a review of the rationales behind governmental intervention, it provides a thorough analysis of the GATS provisions dealing with domestic regulation — notably Article VI thereof — and their relationship with the other GATS provisions dealing more directly with market opening and services trade liberalization such as Articles XVI on market access and XVII on national treatment. In addition, the chapter identifies the rationale behind extensive regulatory intervention in the area of services. In this regard, useful tools for the need of governmental intervention, such as cost-benefit analysis or regulatory impact assessment, are discussed.
D. J. Galligan
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198256762
- eISBN:
- 9780191681660
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256762.003.0006
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This chapter discusses the American doctrine of procedural process of law. It begins with a brief outline of the general doctrine of due process. It then examines the threshold requirement that ...
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This chapter discusses the American doctrine of procedural process of law. It begins with a brief outline of the general doctrine of due process. It then examines the threshold requirement that procedural due process applies only when life, liberty, or property is affected. Finally, it presents a short account of how the doctrine is applied in administrative contexts.Less
This chapter discusses the American doctrine of procedural process of law. It begins with a brief outline of the general doctrine of due process. It then examines the threshold requirement that procedural due process applies only when life, liberty, or property is affected. Finally, it presents a short account of how the doctrine is applied in administrative contexts.
Robert F. Williams
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780195343083
- eISBN:
- 9780199866960
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343083.003.0006
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into ...
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This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.Less
This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.
Stephan W. Schill
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0005
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
This chapter discusses fair and equitable treatment as one of the core concepts of international investment protection. It suggests that the jurisprudence of investment tribunals on fair and ...
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This chapter discusses fair and equitable treatment as one of the core concepts of international investment protection. It suggests that the jurisprudence of investment tribunals on fair and equitable treatment can be conceptualized under a primarily institutional and procedural concept of the rule for law that has parallels in the major domestic legal systems of liberal democracies, and argues that such an understanding can be normatively grounded in the objective of international investment treaties. This overarching understanding translates into several sub-elements of fair and equitable treatment, including the requirement of stability, predictability and consistency, the principle of legality, the protection of legitimate expectations, procedural due process and denial of justice, substantive due process and protection against discrimination and arbitrariness, transparency, and the principles of reasonableness and proportionality.Less
This chapter discusses fair and equitable treatment as one of the core concepts of international investment protection. It suggests that the jurisprudence of investment tribunals on fair and equitable treatment can be conceptualized under a primarily institutional and procedural concept of the rule for law that has parallels in the major domestic legal systems of liberal democracies, and argues that such an understanding can be normatively grounded in the objective of international investment treaties. This overarching understanding translates into several sub-elements of fair and equitable treatment, including the requirement of stability, predictability and consistency, the principle of legality, the protection of legitimate expectations, procedural due process and denial of justice, substantive due process and protection against discrimination and arbitrariness, transparency, and the principles of reasonableness and proportionality.
Franklin E. Zimring
- Published in print:
- 2005
- Published Online:
- May 2012
- ISBN:
- 9780195181166
- eISBN:
- 9780199943302
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195181166.003.0019
- Subject:
- Sociology, Law, Crime and Deviance
Two justifications existed from the start for creating a juvenile court, referred to as the interventionist and diversionary justifications for a separate children's court. The diversionary ...
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Two justifications existed from the start for creating a juvenile court, referred to as the interventionist and diversionary justifications for a separate children's court. The diversionary justification for juvenile court was always the most important of the two rationales, and it remains so today. Diversionary principles of juvenile justice are well suited both to a modern theory of adolescent development and to concern about procedural fairness and proportionality in legal response to youth crime. This chapter shows both continuity and coherence to the diversionary rationale for juvenile courts through the first hundred years of their history. The chapter is organized as follows. The first section sets out the two discrete justifications for creation of a juvenile court and documents the diversionary agenda of turn-of-the-century reformers. The second section shows the extent to which the major programmatic elements of early juvenile justice were consistent with diversionary justifications and methods. The third section addresses the modern concept of juvenile justice as reflected in two leading Supreme Court cases. It was a diversionary theory of juvenile court that could accommodate due process rules without sacrifices of youth welfare. The fourth section is concerned with the contemporary understanding of juvenile justice as a passive virtue. It shows that the effectiveness of juvenile courts in protecting youth from full criminal punishment is the heart of the reason the court has so many contemporary enemies.Less
Two justifications existed from the start for creating a juvenile court, referred to as the interventionist and diversionary justifications for a separate children's court. The diversionary justification for juvenile court was always the most important of the two rationales, and it remains so today. Diversionary principles of juvenile justice are well suited both to a modern theory of adolescent development and to concern about procedural fairness and proportionality in legal response to youth crime. This chapter shows both continuity and coherence to the diversionary rationale for juvenile courts through the first hundred years of their history. The chapter is organized as follows. The first section sets out the two discrete justifications for creation of a juvenile court and documents the diversionary agenda of turn-of-the-century reformers. The second section shows the extent to which the major programmatic elements of early juvenile justice were consistent with diversionary justifications and methods. The third section addresses the modern concept of juvenile justice as reflected in two leading Supreme Court cases. It was a diversionary theory of juvenile court that could accommodate due process rules without sacrifices of youth welfare. The fourth section is concerned with the contemporary understanding of juvenile justice as a passive virtue. It shows that the effectiveness of juvenile courts in protecting youth from full criminal punishment is the heart of the reason the court has so many contemporary enemies.
Scott Soames
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691160726
- eISBN:
- 9781400850464
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691160726.003.0015
- Subject:
- Philosophy, American Philosophy
This chapter begins by articulating the principles underlying the two key dimensions of a new, deferentialist, theory of legal interpretation—the identification of original asserted or stipulated ...
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This chapter begins by articulating the principles underlying the two key dimensions of a new, deferentialist, theory of legal interpretation—the identification of original asserted or stipulated content, and the nature of the deference required when new circumstances demand that judges make new law. These principles are then applied to the interpretation of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States. It sketches one avowedly nondeferentialist conception of judicial responsibility, one straightforwardly deferentialist conception, and one conception that is a hybrid of the two. Taken as competing accounts of the existing norms governing legal interpretation by legally authorized actors (typically the judiciary), it is argued that the real dispute is between the deferentialist and the hybrid view.Less
This chapter begins by articulating the principles underlying the two key dimensions of a new, deferentialist, theory of legal interpretation—the identification of original asserted or stipulated content, and the nature of the deference required when new circumstances demand that judges make new law. These principles are then applied to the interpretation of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States. It sketches one avowedly nondeferentialist conception of judicial responsibility, one straightforwardly deferentialist conception, and one conception that is a hybrid of the two. Taken as competing accounts of the existing norms governing legal interpretation by legally authorized actors (typically the judiciary), it is argued that the real dispute is between the deferentialist and the hybrid view.
Catherine Donnelly
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0015
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Relying on a comparison of the United Kingdom, the United, the EU, and France, this chapter considers whether, and to what extent, there are common approaches in the policies and practices across ...
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Relying on a comparison of the United Kingdom, the United, the EU, and France, this chapter considers whether, and to what extent, there are common approaches in the policies and practices across jurisdictions regarding public-private partnerships (PPPs). The aim is to refine formulations of such principles of international investment law, as fair and equitable treatment of the investor, transparency, legitimate expectations, proportionality, and due process as they apply to PPPs. It is argued that advertising, competition, and a qualified lowest price award criterion promote transparency. While legitimate expectations are protected, the principle is curtailed by the governmental desire to preserve flexibility, increasing periodic review, and the overriding importance of legality of public contracting. Due process is promoted by provision for remedies in the event of violation of award procedures or the contract itself; while proportionality requires that contractors not be penalized excessively for contractual breaches.Less
Relying on a comparison of the United Kingdom, the United, the EU, and France, this chapter considers whether, and to what extent, there are common approaches in the policies and practices across jurisdictions regarding public-private partnerships (PPPs). The aim is to refine formulations of such principles of international investment law, as fair and equitable treatment of the investor, transparency, legitimate expectations, proportionality, and due process as they apply to PPPs. It is argued that advertising, competition, and a qualified lowest price award criterion promote transparency. While legitimate expectations are protected, the principle is curtailed by the governmental desire to preserve flexibility, increasing periodic review, and the overriding importance of legality of public contracting. Due process is promoted by provision for remedies in the event of violation of award procedures or the contract itself; while proportionality requires that contractors not be penalized excessively for contractual breaches.
Amy E. Lerman
- Published in print:
- 2008
- Published Online:
- October 2011
- ISBN:
- 9780195329414
- eISBN:
- 9780199851720
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195329414.003.0003
- Subject:
- Political Science, American Politics
In determining what protections to accord those accused of criminal activity, the Supreme Court has tried to balance the Constitution's protection of individual liberties and the state's need to ...
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In determining what protections to accord those accused of criminal activity, the Supreme Court has tried to balance the Constitution's protection of individual liberties and the state's need to ensure public safety. This chapter examines changing public attitudes toward these competing priorities over the last half century in light of three major Supreme Court decisions (Gideon v. Wainwright, Miranda v. Arizona, and Mapp v. Ohio). Through these decisions, the Supreme Court bolstered the due process rights of the accused, even as the public by and large preferred to strengthen prosecutorial power. The analyses presented in this chapter suggest some important points about the power of the Court and its role in shaping the attitudes of the mass public.Less
In determining what protections to accord those accused of criminal activity, the Supreme Court has tried to balance the Constitution's protection of individual liberties and the state's need to ensure public safety. This chapter examines changing public attitudes toward these competing priorities over the last half century in light of three major Supreme Court decisions (Gideon v. Wainwright, Miranda v. Arizona, and Mapp v. Ohio). Through these decisions, the Supreme Court bolstered the due process rights of the accused, even as the public by and large preferred to strengthen prosecutorial power. The analyses presented in this chapter suggest some important points about the power of the Court and its role in shaping the attitudes of the mass public.
Derek W. Black
- Published in print:
- 2019
- Published Online:
- September 2020
- ISBN:
- 9781479893287
- eISBN:
- 9781479872770
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9781479893287.003.0006
- Subject:
- Law, Philosophy of Law
In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He ...
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In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He begins by sorting those theories into their major doctrinal categories and subcategories and explaining their basic arguments, including substantive due process, equal protection, privileges and immunities, citizenship, and originalism. Black then critically evaluates those theories, examining both the positives and negatives of the leading theories. He concludes that while a number of theories are plausible, scholarly theories have tended toward originalism in recent years and are the most likely to be successful before the courts.Less
In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He begins by sorting those theories into their major doctrinal categories and subcategories and explaining their basic arguments, including substantive due process, equal protection, privileges and immunities, citizenship, and originalism. Black then critically evaluates those theories, examining both the positives and negatives of the leading theories. He concludes that while a number of theories are plausible, scholarly theories have tended toward originalism in recent years and are the most likely to be successful before the courts.
Lawrence S. Wrightsman and Mary L. Pitman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199730902
- eISBN:
- 9780199776986
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199730902.003.001
- Subject:
- Psychology, Forensic Psychology
Two recent Supreme Court decisions are examined in depth to illustrate the inconsistencies and other problems in the current application of the Miranda ruling. Conflicting values of due process and ...
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Two recent Supreme Court decisions are examined in depth to illustrate the inconsistencies and other problems in the current application of the Miranda ruling. Conflicting values of due process and crime control–both very salient in our society-are employed to explain these inconsistencies.Less
Two recent Supreme Court decisions are examined in depth to illustrate the inconsistencies and other problems in the current application of the Miranda ruling. Conflicting values of due process and crime control–both very salient in our society-are employed to explain these inconsistencies.
Robert A. Destro
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199228294
- eISBN:
- 9780191711343
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228294.003.0008
- Subject:
- Law, Criminal Law and Criminology
This chapter provides an analysis of the legal sanctioning of the termination of medical treatment in the US case of Schiavo. The author's role as, inter alia, co-counsel for Mrs Schiavo's parents ...
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This chapter provides an analysis of the legal sanctioning of the termination of medical treatment in the US case of Schiavo. The author's role as, inter alia, co-counsel for Mrs Schiavo's parents allows him to offer a revealing insight into the theatre of the judicial process. It is argued here that the judiciary went beyond the limits of their moral and legal authority in serving as Terri Schiavo's substituted decision-maker, and did not ensure that she was treated justly. The crucial ethical question is whether the decision not to appoint a guardian ad litem entailed that Schiavo did not receive a fair trial. If the court had been hearing a criminal case involving a person facing the death penalty, the due process argument would have been taken more seriously, and, it is argued, from the patient's perspective, Schiavo's interests would have been better protected had the decision of whether it was appropriate to end her life been one for the criminal law, not civil law.Less
This chapter provides an analysis of the legal sanctioning of the termination of medical treatment in the US case of Schiavo. The author's role as, inter alia, co-counsel for Mrs Schiavo's parents allows him to offer a revealing insight into the theatre of the judicial process. It is argued here that the judiciary went beyond the limits of their moral and legal authority in serving as Terri Schiavo's substituted decision-maker, and did not ensure that she was treated justly. The crucial ethical question is whether the decision not to appoint a guardian ad litem entailed that Schiavo did not receive a fair trial. If the court had been hearing a criminal case involving a person facing the death penalty, the due process argument would have been taken more seriously, and, it is argued, from the patient's perspective, Schiavo's interests would have been better protected had the decision of whether it was appropriate to end her life been one for the criminal law, not civil law.
Benjamin Michael Superfine
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195337488
- eISBN:
- 9780199868667
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195337488.003.0003
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the law governing high-stakes testing in four major areas: intentional discrimination, preservation of the effects of prior segregation, disparate impact, and due process. It ...
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This chapter examines the law governing high-stakes testing in four major areas: intentional discrimination, preservation of the effects of prior segregation, disparate impact, and due process. It also includes a detailed discussion of two major cases in which courts have applied this law: Debra P. v. Turlington and GI Forum v. Texas Education Agency. The chapter concludes that while high-stakes testing cases are extremely important for protecting the educational rights of minority students and other traditionally underserved groups of students, these cases (and the legal frameworks guiding them) are becoming increasingly less viable and apply to modern standards-based reform policies only to a limited extent. Moreover, these cases are characterized by scientific uncertainty and have taxed the capacities of the courts in certain key respects.Less
This chapter examines the law governing high-stakes testing in four major areas: intentional discrimination, preservation of the effects of prior segregation, disparate impact, and due process. It also includes a detailed discussion of two major cases in which courts have applied this law: Debra P. v. Turlington and GI Forum v. Texas Education Agency. The chapter concludes that while high-stakes testing cases are extremely important for protecting the educational rights of minority students and other traditionally underserved groups of students, these cases (and the legal frameworks guiding them) are becoming increasingly less viable and apply to modern standards-based reform policies only to a limited extent. Moreover, these cases are characterized by scientific uncertainty and have taxed the capacities of the courts in certain key respects.
