scholarly journals The Supreme Court and Pretrial Detention of Juveniles: A Principled Solution to a Due Process Dilemma

1983 ◽  
Vol 132 (1) ◽  
pp. 95
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Pretrial Detention ◽  
The Supreme Court

scholarly journals The Forgotten Property Right

2019 ◽  
Vol 5 (3) ◽  
pp. 501-528
Author(s):  
Peter Kuylen
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Property Right ◽  
The Supreme Court ◽  
Personal Jurisdiction ◽  
At Home

With its move to the “at home” standard in Goodyear, Daimler, and BNSF, the Supreme Court significantly restricted the exercise of general personal jurisdiction over nonresident corporation defendants. This restriction offers questionable actual benefits to corporate defendants, but its rigid focus on defendant’s rights has impacted the ability of certain plaintiffs to bring a cause of action against those defendants. Because the at home standard infringes on this group of plaintiffs’ ability to assert their property right of redress in violation of the Due Process Clauses of the Constitution (Fifth and Fourteenth Amendments), the Court should return to the previous “continuous and systematic contacts” standard developed under International Shoe. Hundreds of articles have been written in the four years since Daimler erased fifty years of general personal jurisdiction jurisprudence. But because personal jurisdiction analysis is traditionally defendant focused, there is little mention of the plaintiff’s property right in access to the courts in that literature. Personal jurisdiction rules should protect a defendant’s interests, but not to the total forfeiture of a plaintiff’s property right. Recognizing the at home standard as a misstep would resolve this constitutional conflict.

scholarly journals The Constitutional Law of Incarceration, Reconfigured

2018 ◽  
Author(s):  
Margo Schlanger
Keyword(s):  
Due Process ◽  
Use Of Force ◽  
Mass Incarceration ◽  
Federal Court ◽  
Pretrial Detention ◽  
Legal Standards ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
Incarcerated Populations ◽  
Lower Courts

103 Cornell L. Rev. 357 (2018)As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well. In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases. But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.

22. A Revolution by Due Process of Law?

2021 ◽  
pp. 613-648
Author(s):  
Ian Loveland
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Due Process ◽  
Final Part ◽  
Court Decisions ◽  
The European Union ◽  
Legal Basis ◽  
High Court ◽  
The Supreme Court ◽  
Due Process Of Law

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

Need for a more Democratic Procedure of Amending the Constitution

1916 ◽  
Vol 10 (4) ◽  
pp. 683-688
Author(s):  
Seba Eldridge
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
State Legislatures ◽  
Fourteenth Amendment ◽  
Political Discussion ◽  
Legislative Authority ◽  
The Supreme Court ◽  
History Of ◽  
Electoral Control ◽  
Democratic Procedure

That final legislative authority in this country is lodged in the letter of a constitution that is amended with the greatest difficulty, and with a supreme court which is entirely independent of electoral control has become a commonplace of political discussion.To quote Professor Goodnow: “Acts of congress and of state legislatures are declared to be unconstitutional ‥‥ because they cannot be made to conform to a conception of the organization and powers of government which we have inherited from the eighteenth century;” and Dr. Blaine F. Moore: “If we may judge from the decisions based on the due process clause in the fourteenth amendment and applying to the States, the court has it in its power to make the similar clause in the fifth amendment cover practically all federal legislation dealing with new problems concerning which there are few or no precedents. If the court does make this entirely possible extension of its power, then the legislation dealing with the more recent and pressing questions is under the control of the popularly inaccessible justices of the supreme court.”Both these quotations are from studies published before the adoption of the sixteenth and seventeenth amendments, but they are only a little less true now than then, as an analysis of the history of those amendments will show.

Debating the Indian Supreme Court: Equality, Liberty, and the Rule of Law

2015 ◽  
Vol 13 (3) ◽  
pp. 353-368 ◽  
Author(s):  
Jinee Lokaneeta
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Political Liberty ◽  
The Rule Of Law ◽  
Criminal Defendant ◽  
Recent Scholarship ◽  
The Supreme Court ◽  
Indian State ◽  
Indian Supreme Court

In this essay, I explore some of the contemporary debates on the role of the Indian Supreme Court in the context of equality and liberty at a moment when it appears that the very reasons for the celebration of judicial review and interventions are under attack by progressive scholars and activists. In reviewing the debates on the role of the Court, I focus on one particular contention that since the realm of social/equality was paramount for the Indian state as a whole, and the Supreme Court post-emergency, the realm of political/liberty was consequently ignored. By revisiting the debate on equality trumping liberty, I acknowledge the critiques of the Court but also point to ways in which certain facets of political liberty do get addressed even in the absence of a focus on liberty. Even if by themselves these judicial interventions may be inadequate to create a due process revolution as far as criminal defendant rights are concerned, they create an “arsenal of tools” available for those concerned with liberty and justice. At the very least, such a conception portrays the Court as less unidimensional than characterized by recent scholarship and retains the Court as a productive site of contestation.

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