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The Supreme Court in the Era of Bifurcated Review III: Due Process Cases

G. Edward White

in Law in American History, Volume III: 1930-2000

Published in print:
2019
Published Online:
May 2019
ISBN:
9780190634940
eISBN:
9780190940348
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780190634940.003.0010
Subject:
Law, Legal History, Constitutional and Administrative Law

The Supreme Court’s decisions interpreting the Due Process Clauses of the Fifth and Fourteenth Amendments followed an uneven pattern in the period covered in this volume. From a posture of aggressive ... More


Implying a Federal Constitutional Right to Education

Derek W. Black

in A Federal Right to Education: Fundamental Questions for Our Democracy

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 ... More


Methodology in State Constitutional Rights Interpretation

Robert F. Williams

in The Law of American State Constitutions

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 ... More


Protecting a Federal Right to Educational Equality and Adequacy

Joshua E. Weishart

in A Federal Right to Education: Fundamental Questions for Our Democracy

Published in print:
2019
Published Online:
September 2020
ISBN:
9781479893287
eISBN:
9781479872770
Item type:
chapter
Publisher:
NYU Press
DOI:
10.18574/nyu/9781479893287.003.0013
Subject:
Law, Philosophy of Law

In this chapter, Joshua E. Weishart notes that courts have resolved lawsuits invoking state constitutional rights in ways that have subdued the tension between two principles of justice: equality and ... More


Ethical Argument

Lackland H. Bloom

in Methods of Interpretation: How the Supreme Court Reads the Constitution

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195377118
eISBN:
9780199869510
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195377118.003.0011
Subject:
Law, Constitutional and Administrative Law

This chapter discusses the use of ethical argument by the Court. It examines the arguable employment of such methodology under the Cruel and Unusual Punishment Clause of the Eighth Amendment focusing ... More


Social Policy: from Domestication to Disarmament

Alexander Somek

in Engineering Equality: An Essay on European Anti-Discrimination Law

Published in print:
2011
Published Online:
September 2011
ISBN:
9780199693375
eISBN:
9780191729737
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199693375.003.0002
Subject:
Law, Philosophy of Law, EU Law

The impact of the European Union on the social policies of its Member States can generally be described in terms of domestication, assimilation, and disarmament. Social policy has been domesticated ... More


The Prospects of the New Proceduralism

Benjamin S. Yost

in Against Capital Punishment

Published in print:
2019
Published Online:
March 2019
ISBN:
9780190901165
eISBN:
9780190901196
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780190901165.003.0006
Subject:
Philosophy, Moral Philosophy

The final chapter illuminates the book’s most significant implications. It first highlights the project’s improvements on extant versions of proceduralism. Targeting both legal and philosophical ... More


Constitutional Limitations: Due Process of Law

Scott Burris, Micah L. Berman, Matthew Penn, and, and Tara Ramanathan Holiday

in The New Public Health Law: A Transdisciplinary Approach to Practice and Advocacy

Published in print:
2018
Published Online:
September 2018
ISBN:
9780190681050
eISBN:
9780190681081
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780190681050.003.0011
Subject:
Public Health and Epidemiology, Public Health

This chapter describes “due process,” a Constitutional restriction on governmental actions that impact individuals, in the context of public health. It outlines the doctrines of procedural and ... More


PROCEDURE: Implicit Proportionality Limits on Police Powers and Defendant Rights

E. Thomas Sullivan and Richard S. Frase

in Proportionality Principles in American Law: Controlling Excessive Government Actions

Published in print:
2008
Published Online:
January 2009
ISBN:
9780195324938
eISBN:
9780199869411
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195324938.003.0006
Subject:
Law, Constitutional and Administrative Law

This chapter examines the many examples of constitutional and subconstitutional criminal procedure rules incorporating ends-benefits and/or alternative-means proportionality principles. The ... More


The Substantive Due Process Triumvirate: Health, Safety, and Morals

Herbert Hovenkamp

in The Opening of American Law: Neoclassical Legal Thought, 1870-1970

Published in print:
2014
Published Online:
October 2014
ISBN:
9780199331307
eISBN:
9780190204495
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199331307.003.0014
Subject:
Law, Legal History

Classical legal theory was antagonistic toward state economic regulation and heavily suspicious of special interest “capture.” The resulting constitutional doctrine came to be called “substantive due ... More


Substitutes for Natural Law

Stuart Banner

in The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped

Published in print:
2021
Published Online:
April 2021
ISBN:
9780197556498
eISBN:
9780197556528
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780197556498.003.0009
Subject:
Law, Constitutional and Administrative Law

This chapter offers a fresh perspective on some familiar aspects of the legal thought of the late 19th and early 20th centuries, by connecting them to the decline of natural law. Much of what we now ... More


The Direct Judicial Protection of Property Rights

John Attanasio

in Politics and Capital: Auctioning the American Dream

Published in print:
2018
Published Online:
March 2018
ISBN:
9780190847029
eISBN:
9780190847050
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780190847029.003.0003
Subject:
Law, Constitutional and Administrative Law

The U.S. Supreme Court thought that protecting private property was necessary to protecting political autonomy. In Lochner v. New York, the Court expanded its concept of property rights to include ... More


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