Time to Bury the Shocks the Conscience Test

The Supreme Court has acknowledged that the Due Process Clause, like its forebear in the Magna Carta, was \u27intended to secure the individual from the arbitrary exercise of the powers of government\u27...to prevent governmental power from being \u27used for purposes of oppression.\u27 1 Historically, Magna Carta was aimed a·t limiting the power of the king. Today, substantive due process is invoked to challenge arbitrary deprivations of life, liberty, and property by officials, such as police officers, jail guards, public-school educators, public employers, and members of zoning boards. However, the Supreme Court has emasculated its efficacy as a limitation on executive power. In 1998, in County of Sacramento v. Lewis, it held that the criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue. 2 Whereas legislative enactments are subject to varying levels of scrutiny depending on the nature of the rights at stake, the Court asserted that only the most egregious executive misconduct, that which shocks the conscience, will be actionable.3 Since 1998, Lewis has created significant confusion and division in the appellate courts, severely restricting the ability of detainees, students, government employees, and landowners, to bring substantive due process challenges to the arbitrary exercise of power. Some circuits have required that litigants prove that executive misconduct both infringe on a fundamental right and shock the conscience. Because neither employment nor property are regarded as fundamental rights, most allegations of arbitrary treatment brought by government employees and landowners are dismissed. Other appellate courts allow substantive due process challenges to the deprivation of non-fundamental property or liberty interests only where the litigant demonstrates the inadequacy of state law remedies, thereby permitting the vagaries of state tort law to determine the fate of constitutional claims. Further, the appellate courts have interpreted the shocks the conscience\u27\u27 test to impose a draconian standard, mandating, for example, that detainees demonstrate unnecessary and wanton infliction of pain or that students prove intentional malice or sadism in order to challenge excessive, unwarranted corporal punishment. The thesis of this Article is that the \u27shocks the conscience test, which is founded on a false dichotomy between substantive due process challenges to executive and legislative action, should be rejected. First, it is historically untenable. The core concern of Magna Carta, the source of substantive due process, was to limit executive abuse of power. This was the understanding of those who framed and ratified the Due Process Clause. Thus, it is counterintuitive to make it more difficult for plaintiffs to challenge executive misconduct. Second, Lewis rests on shaky precedent and has not been consistently adhered to by the Supreme Court in subsequent cases. Third, the concern cited by the Court to justify a more stringent standard for executive action fear of converting § 1983 substantive due process claims into a font of tort law is unfounded and exaggerated. Section 1983 should not drive constitutional interpretation, and immunity defenses already significantly insulate government officials and entities sued for § 1983 damages. Fourth, the numerous circuit conflicts demonstrate that the test has proven to be an unworkable analytical tool. To restore substantive due process as a meaningful safeguard against arbitrary abuse of government power, Lewis should be overturned. Recognizing, however, the concerns of subjectivity and unbridled discretion that have surrounded the substantive due process conundrum, this Article proposes a new test with specific criteria, extrapolated from various Supreme Court and appellate court decisions, to guide courts in determining when government misconduct should be viewed as an unconstitutional abuse of power. ---------- 1 Daniels v. Williams, 474 U.S. 327, 331 (1986) (citations omitted). 2 County of Sacramento v. Lewis; 523 U.S. 833, 846 (1998). 3 Id

Human Motivation in Thomas Reid

According to Reid (1969, 283) motives are an ens rationis. Because of that they may influence to action, but they do not act as causes or as agents, that is motives are only advisory (cf. Seebaß 1993, 329; Lehrer 1989, 210). Instead motives presuppose an efficient cause, namely an agent (cf. Rowe 1991, chapter 4), and the agent"s freedom (Reid 1969, 284). In opposition to Leibniz (1994, 84-85) who defends subtle reasons Reid (1969) claims that motives have to be conscious (cf. Seebaß 1993, 269). For to "be influenced by a motive of which I am not conscious, is, ..., an arbitrary supposition without any evidence, ... ." (Reid 1969, 285

The vanishing law of Crown act of state

No abstract available

With No Deliberate Speed: The Segregation of Roma Children in Europe

In this study, by taking the advantage of both inorganic ZnO nanoparticles and the organic material chitosan as a composite seed layer, we have fabricated well-aligned ZnO nanorods on a gold-coated glass substrate using the hydrothermal growth method. The ZnO nanoparticles were characterized by the Raman spectroscopic techniques, which showed the nanocrystalline phase of the ZnO nanoparticles. Different composites of ZnO nanoparticles and chitosan were prepared and used as a seed layer for the fabrication of well-aligned ZnO nanorods. Field emission scanning electron microscopy, energy dispersive X-ray, high-resolution transmission electron microscopy, X-ray diffraction, and infrared reflection absorption spectroscopic techniques were utilized for the structural characterization of the ZnO nanoparticles/chitosan seed layer-coated ZnO nanorods on a gold-coated glass substrate. This study has shown that the ZnO nanorods are well-aligned, uniform, and dense, exhibit the wurtzite hexagonal structure, and are perpendicularly oriented to the substrate. Moreover, the ZnO nanorods are only composed of Zn and O atoms. An optical study was also carried out for the ZnO nanoparticles/chitosan seed layer-coated ZnO nanorods, and the obtained results have shown that the fabricated ZnO nanorods exhibit good crystal quality. This study has provided a cheap fabrication method for the controlled morphology and good alignment of ZnO nanorods, which is of high demand for enhancing the working performance of optoelectronic devices

Environmental Injustice/Racism in Flint, Michigan: An Analysis of the Bodily Integrity Claim in Mays v. Snyder as Compared to Other Environmental Justice Cases

This Note examines the merits of the “bodily integrity” claim that the Flint residents have alleged in Mays (but does not discuss any claims asserted in Earley, the case Mays was consolidated with on appeal), and asserts that they should be successful on this claim on remand, assuming that the facts alleged in the Flint residents’ complaint are true. This Note outlines the alleged facts and then discusses the existing case law on bodily integrity claims generally, both in the non-environmental justice and environmental justice fields. Following is an explanation of the specific bodily integrity claim the Flint residents have made and an application of the existing case law (from both the non-environmental justice and environmental justice fields) to the alleged facts. Lastly, this Note compares this federal Flint case to the parallel Flint-related state class action suit filed with the Michigan Court of Claims. Although there might be some legal hurdles that the Flint residents will have to overcome, their bodily integrity claim can be successful on remand and will likely not be precluded by federal statute if appealed to the U.S. Supreme Court. As a result, similar bodily integrity claims should be used as a remedy for contamination of other public drinking water sources across the country. The Flint residents should be able to establish that: (1) defendants’ actions occurred “under color of state law,” and (2) a constitutional right exists and was deprived. The Flint residents can best establish this by showing that defendants’ conduct was “outrageous and shocking” to the point where it “shocks the conscience” of the judiciary, as the defendants’ actions exhibited “deliberate indifference” to plaintiffs’ rights to clean water. On remand, no deference should be given to the district judge’s initial dismissal of the case because the district court made virtually no findings of fact and did not consider the merits of whether defendants actually violated the Flint residents’ established constitutional right to bodily integrity. Within the environmental justice context specifically, the magnitude of defendants’ intrusion on plaintiffs’ bodily integrity rights far outweighs the public health benefit (if there is any in this case) and its innocuous effect on the Flint residents resulting from defendants’ actions

Private Violence, Public Wrongs, and the Responsibility of States

This Article will discuss the decisions of the Inter-American Court, comparing them with U.S. judicial decisions involving “state action” and private conduct. It will point out the evolution in international law from restraints on the exercise of state power, to the more generalized obligation of ensuring respect for human rights. This Article concludes that the American Convention provides guarantees for individual rights that are lacking in U.S. constitutional law

Doing without Deliberation: Automatism, Automaticity, and Moral Accountability,

Actions performed in a state of automatism are not subject to moral evaluation, while automatic actions often are. Is the asymmetry between automatistic and automatic agency justified? In order to answer this question we need a model or moral accountability that does justice to our intuitions about a range of modes of agency, both pathological and non-pathological. Our aim in this paper is to lay the foundations for such an account