Attorneys' Fees on Appeal: Misapplication of the Law of the Case Doctrine Raises Procedural and Substantive Due Process Concerns

2016 ◽  
Author(s):  
Larry R. Fleurantin ◽  
Manu Davidson
Keyword(s):  
Due Process ◽  
Substantive Due Process ◽  
The Law

ESTOPPEL IN THE CONTEXT OF RUSSIAN CIVIL PROCEDURE: ASPECTS OF THEORY AND PRACTICE

2021 ◽  
Vol 11 (4) ◽  
pp. 229-250
Author(s):  
A.V. YAKHIMOVICH
Keyword(s):  
Due Process ◽  
Civil Procedure ◽  
Theory And Practice ◽  
Access To Justice ◽  
Legal Principle ◽  
Legal Texts ◽  
Substantive Due Process ◽  
The Law ◽  
Procedural Rights ◽  
Formal Requirements

Substantive due process is commonly recognized as fundamental guarantee of a person’s access to justice. One of the main conditions guaranteeing observance of the due process is litigants’ comprehensive sets of procedural rights. Ways in which they can assert their rights should be exhaustively defined as well. The extent of thoroughness of regulation may be different but it may not be absent. In that respect estoppel as a legal principle, which lacks formal requirements in the law, is problematic. The sustainability of judgements which are reasoned by way of employing a broad undefined concept of estoppel is questioned. One of the biggest doubts discussed is the viability of an idea where promissory estoppel is used as a source of a general estoppel concept. It is argued that promissory estoppel being a specific English obligation law instrument cannot be used as a source of limiting procedural rights of litigants. As for estoppel by representation, it can be safely adopted because of its nature as a source of identifying principal issues of fact. It has nothing to do with establishing or banning any personal or procedural rights. But in order to safely implement this type of estoppel it has to be thoroughly considered as to how exactly this instrument of procedure will be married with the current court’s legal duties. It has to decide cases upon all and truly established issues of fact in question. The problem is not a trivial one as even in leading English legal texts it is recognized the contradiction between court’s inquisitorial duties and using of these types of estoppel.

Constitutional Limitations

2018 ◽  
Author(s):  
Scott Burris ◽  
Micah L. Berman ◽  
Matthew Penn, and ◽  
Tara Ramanathan Holiday
Keyword(s):  
Public Health ◽  
Supreme Court ◽  
Due Process ◽  
Reproductive Rights ◽  
Court Cases ◽  
Health It ◽  
State Action ◽  
Substantive Due Process ◽  
State Action Doctrine ◽  
Due Process Rights

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 substantive due process, including the legal tests that courts apply to decide whether individuals’ due process rights have been violated. It uses examples from Supreme Court cases that have defined due process in the context of public health, including those that struggle to define the scope of reproductive rights. It also examines two cases where public health principles were raised as a justification for governmental action: one about involuntary sterilization and one about Ebola. The chapter concludes with a brief discussion of the “state action doctrine” that defines which public health actors may be challenged on due process grounds.

The rights of the defendant and public interest in proving insanity under the law of New York

2021 ◽  
Vol 30 (3) ◽  
pp. 108-124
Author(s):  
Aleksey Grin'ko
Keyword(s):  
New York ◽  
Law Enforcement ◽  
Public Interest ◽  
Due Process ◽  
Burden Of Proof ◽  
Public And Private ◽  
Whole Process ◽  
History Of ◽  
The Law ◽  
Legislative Changes

Allocation of the burden of proof is a key issue of criminal procedure that is affected by multiple legal and social factors. Under due process principles, the defendant’s right to a fair and impartial trial is deemed to be the epicenter of the whole structure. However, efficient law enforcement is a prominent public interest that must be considered. This article explores the correlation between public and private interest in proving insanity under the law of New York, which provides great empirical background due to its long history of legal disputes and legislative changes. Considering the nature and structure of the burden of proof, the author concludes that there are several principles for its fair allocation: the due party that bears both the burden and the risk of its nonperformance; the feasibility of the burden; the adequate opportunity for the other party to rebut; the concentration of resources upon needs that are not presumed but in fact exist. All the mentioned principles lay the ground for the harmonization of constitutional guaranties for the defendant as well as the successful enforcement of criminal law. The current New York approach to insanity defense as an affirmative one along with the history of its implementation tends to prove its compliance with such requirements. This finding suggests that bearing the burden shall not be treated as impairment by default, but can protect both the interest of this party and the integrity of the whole process.

scholarly journals Copyright's Digital Deputies: DMCA-Plus Enforcement by Internet Intermediaries

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Due Process ◽  
Law Faculty ◽  
College Of Law ◽  
The Law ◽  
Secondary Liability ◽  
University Of Idaho ◽  
Due Process Rights ◽  
Voluntary Basis

In the years since passage of the Digital Millennium Copyright Act ("DMCA"), the copyright industries have demanded that online intermediaries - both those covered by the DMCA and those falling outside the statute's ambit - do more than the law requires to protect their intellectual property rights. In particular, they have sought new ways to reach and shutter "pirate sites" beyond the reach of United States law. Their demands have been answered through an expanding regime of nominally voluntary "DMCA-plus" enforcement.This chapter surveys the current landscape of DMCA-plus enforcement by dividing such enforcement into two categories: Type 1 and Type 2. Type 1 DMCA-plus enforcement is cooperation by DMCA-covered intermediaries over and above what is required for safe harbor. Type 2 DMCA-plus enforcement is cooperation by intermediaries whose activities fall outside the scope of the DMCA's safe harbors and who are not liable for their customers' copyright infringements under secondary liability rules.As the gap widens between what the law requires and what intermediaries are agreeing to do on a voluntary basis, there is reason to be concerned about the expressive and due process rights of users and website operators, who have no seat at the table when intermediaries and copyright owners negotiate "best practices" for mitigating online infringement, including which sanctions to impose, which content to remove, and which websites to block without judicial intervention.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Mengukur Konstitusionalitas Peninjauan Kembali (PK) Kedua dalam Perkara Perdata

2020 ◽  
Vol 22 (2) ◽  
pp. 452-474
Author(s):  
Priyo Handoko
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
Criminal Case ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Due Process Of Law ◽  
The Law ◽  
Civil Cases ◽  
Constitutional Analysis

The study aims to provide a constitutional analysis of judicial review (PK) in civil cases for more than once. The research-based is the decision of the Constitutional Court No. 108 / PUU-XIV / 2016 and No. 34 / PUU-XI / 2013 in which the two judgments provide a different classification between criminal and civil cases. The method used in this research is a normative juridical with a conceptual, legislation, and case approach. The results of the study assert that: first, the opportunity for judicial review (PK) more than once in a criminal case is an effort to uphold justice substantively by the Constitutional Court. Whereas the restriction of judicial review (PK) only once in civil cases is intended to guarantee legal certainty. Secondly, there is rational inconsistency in the arguments of the Constitutional Court which is indicated in Decision No. 108 / PUU-XIV / 2016 and No. 34 / PUU-XI / 2013. Both criminal and civil cases must seek to establish and maintain substantial justice, especially since there is a due process of law principle that requires that everyone can get the same opportunity before the law.

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