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Brandon L. Garrett - One of the best experts on this subject based on the ideXlab platform.
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Habeas Corpus and Due Process
Cornell Law Review, 2012Co-Authors: Brandon L. GarrettAbstract:The writ of habeas corpus and the right to Due Process have long been linked together, but their relationship has never been more unsettled or important. The U.S. detained hundreds of suspected terrorists who brought legal challenges using the writ. In the first of two landmark Supreme Court cases addressing those detentions, Hamdi v. Rumsfeld, the plurality chiefly relied on the Due Process Clause to explain what procedures must be followed. Most scholars assumed Due Process would govern the area. However, the Due Process path was not taken in Boumediene v. Bush, in which the Court held that the Suspension Clause itself extended habeas corpus Process to noncitizen detainees at Guantanamo Bay. In fleshing out the required Process, lower courts have misunderstood the Court’s command, borrowing from far-flung standards in post-conviction, administrative, criminal procedure, and immigration law, and generating vague and inadequate procedures for reviewing sensitive national security detentions. I argue Boumediene correctly located procedures in the Suspension Clause, not the Due Process Clause. Further, I argue history and practice supports the view that the Suspension Clause demands a flexible traditional habeas Process. This view challenges the set of standards currently used in executive detention cases. This also has implications for domestic habeas; it could ground innocence claims in the Suspension Clause. More broadly, this explains commonalities in the structure of statutes and caselaw regulating habeas corpus across its array of applications to executive detention and post-conviction review. Habeas review now plays a far more central role in the complex regulation of detention than many would have predicted. This is because it does not, as often understood, depend on underlying Due Process rights - to the contrary, habeas inversely plays its most crucial role when prior Process is lacking. Put simply, the Suspension Clause ensures that habeas corpus begins where Due Process ends.
Ryan C Williams - One of the best experts on this subject based on the ideXlab platform.
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the one and only substantive Due Process clause
Yale Law Journal, 2010Co-Authors: Ryan C WilliamsAbstract:The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments is one of the most debated topics in all of constitutional law. At the core of this debate is the question of whether these Clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the Due Process guarantee should be understood to encompass certain “substantive” protections as well. An important, though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive-Due-Process question must be the same for both provisions. This article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: Did the original meaning of each Clause, at the time of its enactment, encompass a recognizable form of substantive Due Process‘. At the time of the Fifth Amendment’s ratification in 1791, the phrase “Due Process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure with the second phrase having a somewhat broader connotation referring to existing positive law. Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive Due Process.” Between 1791 and the Fourteenth Amendment’s enactment in 1868, Due Process concepts evolved dramatically, both through judicial decisions at the state and federal levels and through the invocation of Due-Process concepts by both pro-slavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery. By 1868, a recognizable form of substantive Due Process had been embraced by courts in at least 20 of the 37 then-existing states as well as by the United States Supreme Court and by the authors of the leading treatises on constitutional law. As a result, my conclusion is that the original meaning of one, and only one, of the two Due Process Clauses – the Due Process Clause of the Fourteenth Amendment – was broad enough to encompass a recognizable form of substantive Due Process.
Joshua D. Hawley - One of the best experts on this subject based on the ideXlab platform.
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Intellectual Origins of (Modern) Substantive Due Process, The
Texas Law Review, 2014Co-Authors: Joshua D. HawleyAbstract:Almost fifty years after the Supreme Court revived the doctrine, substantive Due Process remains a puzzle. Detractors insist it is nothing more than judicial policy making. Defenders say it accords with the deepest values of the Constitution. But on all sides, the present scholarly debate suffers from an impoverished understanding of modern substantive Due Process's intellectual history, which has led to an impoverished understanding of the doctrine's core normative content. It is time for a revisionist turn. This Article supplies that turn by excavating the intellectual origins of modern substantive Due Process and relating that history to the doctrine's development. Ultimately, the Article offers a thoroughly revised account of the modern doctrine's beginnings, development, and meaning. The core of the story is this: modern substantive Due Process depends on a coherent and thoroughly modern notion of liberty, grounded in the ideas of personal authenticity and self-development. The modern doctrine's history begins in the Lochner era, but its debt to Lochner is not the one critics usually claim. Rather, modern substantive Due Process is rooted in the critique of the police powers jurisprudence developed by the opponents of Lochner. This critique rejected the central elements of an older view of liberty, including natural rights and the distinction between the public and private spheres. In the decades that followed Lochner's demise, liberal theorists connected this modernist outlook to a venerable ethic of individual authenticity to fashion a new understanding of human rights and political liberty. This new concept of liberty emphasized personal moral choice and autonomy rather than private property and the right to contract. By the early 1960s, this view of liberty had achieved widespread support among opinion makers and by the end of that decade, became the basis for a new reading of Due Process. The revised account developed here challenges a good deal of conventional wisdom, including the claims of the recent Lochner revisionists like David Bernstein and Randy Barnett who argue that modern substantive Due Process is in one way or another an intellectual extension of the Lochner era. It also challenges the claims of those, like Jack Balkin, who contend that the modern doctrine can be linked directly to the Constitution's original meaning. Instead, this Article shows modern substantive Due Process for what it is: an original, modern, and controversial reading of liberty.IntroductionSubstantive Due Process remains a puzzle. Nearly fifty years after the Supreme Court revived the doctrine,1 its historical origins and precise meaning-to say nothing of its relationship to the constitutional text-remain as obscure as ever. This is not from want of attention on the part of legal scholars. Over the last five decades, scholars have expended prodigious efforts theorizing substantive Due Process and its affiliated cases, with results that are by now entirely familiar. Detractors insist substantive Due Process is sheer invention, a matter of Justices reading their preferred social theories into the Constitution.2 Defenders claim the doctrine faithfully captures the Constitution's commitment to privacy and personal autonomy, though perhaps not for the reasons the Court usually gives.3This conversation, however, has resolved few of the core puzzles concerning the doctrine's origins and meaning. Indeed, if it reveals anything, the protracted scholarly impasse reveals that our understanding of substantive Due Process is Due for a revisionist turn. This Article is an effort to make that turn, to set aside the predictable, competing accounts of substantive Due Process-which often turn out to be mythologies upon closer inspection, as we shall see4-and recover the doctrine's core content and meaning. I propose to do that by uncovering the doctrine's intellectual origins, which is to say, by reconstructing its intellectual history. …
Jason Parkin - One of the best experts on this subject based on the ideXlab platform.
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Dialogic Due Process
University of Pennsylvania Law Review, 2019Co-Authors: Jason ParkinAbstract:What does the future hold for procedural Due Process? From the Due Process revolution of the 1960s and 1970s until recently, constitutional litigation was the primary driver of procedural innovation. Plaintiffs brought lawsuits challenging existing procedures under the Due Process Clause, and courts used the Supreme Court’s cost–benefit, interest-balancing approach to determine the specific dictates of Due Process. That approach reflected the Court’s longstanding view of procedural Due Process as flexible and adaptable to changing circumstances, but it also imposed significant evidentiary hurdles on Due Process plaintiffs. As a result, in recent years, Due Process doctrine has stagnated, with courts less and less interested in ordering additional or alternative procedural safeguards. At the same time, bottom-up procedural experimentation is on the rise. Across jurisdictions and legal contexts, government agencies and court systems are reforming procedures in ways that have been unachievable through litigation. These reforms — for example, creating a right to counsel in deportation and eviction cases, adopting electronic forms of notice, and requiring judges to play an active role in cases with pro se litigants — strike at the heart of the Due Process guarantee, yet the courts are not driving these changes. This has created a growing gap between Due Process doctrine and procedural innovations that are not the result of litigation. This Article analyzes the current divergence between Due Process doctrine and practice. It begins by tracing the shift from the Due Process revolution’s court-driven procedures to today’s bottom-up experimentation. Next, it examines three recent examples of procedural experimentation and situates those innovations within the Supreme Court’s Due Process doctrine. The Article then proposes a dialogic approach to procedural Due Process, through which data generated by procedural innovations can help courts evaluate Due Process claims in litigation. By putting courts in conversation with the wave of procedural innovations unfolding across the nation, this dialogic approach can help revive an otherwise stagnant branch of constitutional doctrine and ensure that the Due Process Clause continues to guarantee fair procedures in the face of changing circumstances.
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Due Process Disaggregation
Notre Dame Law Review, 2014Co-Authors: Jason ParkinAbstract:One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of Due Process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As the Court explained when announcing the modern approach to procedural Due Process in Mathews v. Eldridge, the Due Process calculus must be focused on "the generality of cases, not the rare exceptions." A more granular approach to Due Process rules, the Court emphasized in a series of rulings between 1976 and 1985, would place an unDue administrative and financial burden on the government.This aspect of procedural Due Process law no longer matches the on-the-ground realities of many procedural regimes. In recent years, the space between "the generality of cases" and "the rare exceptions" has become populated with subgroups of individuals whose procedural needs are different from those of the typical individual. Whether Due to subgroup members’ capacities and circumstances, their stronger stake in the proceedings, or their unusually complex cases, subgroup members forced to rely on one-size-fits-all procedures may be deprived of truly meaningful procedural safeguards. At the same time, in ways that were unimaginable just a couple of decades ago, technological developments have enabled government agencies to identify and accommodate subgroup members at a comparatively small additional cost. Based on these developments and the inherently flexible nature of Due Process, it is time to move beyond the Court’s narrow focus on "the generality of cases" and its preference for one-size-fits-all procedural rules. To be sure, not every subgroup warrants additional procedural safeguards. However, rather than dismissing subgroup members as “rare exceptions” unworthy of procedural accommodation, courts should evaluate the Due Process rights of subgroups under the traditional Mathews balancing test. This refinement of Due Process doctrine is necessary to ensure that members of Due Process subgroups — and not just average or typical individuals — are afforded the fundamentally fair procedural protections guaranteed by the Due Process Clause.
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Adaptable Due Process
University of Pennsylvania Law Review, 2012Co-Authors: Jason ParkinAbstract:The requirements of procedural Due Process must adapt to our constantly changing world. Over thirty years have passed since the Supreme Court in Goldberg v. Kelly and Mathews v. Eldridge adopted what appears to be a dynamic, fact-intensive approach to determining the procedures required by the Due Process Clause. Federal, state, and local government agencies responded by establishing new procedural safeguards, many of which are virtually identical to those in use today. Yet, for public benefits programs such as welfare, the intervening decades have brought striking changes. The 1996 federal welfare law created new and powerful incentives to trim the rolls. Work requirements increased the proportion of recipients holding jobs, forcing many to choose between forgoing their Due Process rights and jeopardizing their employment by missing work to attend a hearing. Technological advances enabled welfare agencies to cut off benefits based on automated eligibility determinations that are difficult for recipients to challenge. Cuts in funding for legal services made the prospect of legal representation at fair hearings remote. These new facts and circumstances undermine the effectiveness of existing procedures and may require reweighing the Mathews factors to determine what Process is Due to welfare recipients. Such changes are not unique to welfare; the facts and circumstances relevant to many of the procedural safeguards established since the Due Process revolution will evolve in the years to come, if they have not already. Although the Supreme Court has not addressed whether or how existing procedures should be adapted to such changes, adapting the demands of Due Process to new facts and circumstances is faithful to constitutional doctrine and necessary to ensure that existing procedures continue to provide Due Process of law. It also provides an opportunity to reinvigorate a conversation about procedural justice that went silent many years ago.
Zhang Shao-qian - One of the best experts on this subject based on the ideXlab platform.
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On Charateristics of Due Process of Death Penalty
Journal of Henan Normal University, 2004Co-Authors: Zhang Shao-qianAbstract:Basing on the principles of legal Due Process,and according to the nature of death penalty and the Due Process supposed by the international law, the author makes a deep research on the concept and its basic characteristics of the Due Process of death penalty. It is believed that the Due Process of death penalty should pursue the legal justice, including both entity's and procedure's;it must limit the power of state organs and guarantee the basic human rights of the possibly executed, and must keep the legal Process justice, equal, open, civilized and betimes.
