7,256,636 research outputs found

    Draft Indictment of Saddam Hussein

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    Takings as Due Process, or Due Process as Takings ?

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    Due Process in Micronesia: Are Fish Due Less Process?

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    Academic Due Process

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    Electoral Due Process

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    Elections and their aftermath are matters left to the states by the U.S. Constitution. But the Supreme Court has made clear that the right to vote is federally protected, and fiercely so. When an election failure takes place and deprives citizens of their votes, challengers must resort to state law remedies. Many states have procedural requirements for election challenges that are stringent to the point of being prohibitive. This Note argues that the due process concerns raised by these burdensome state procedures are amplified by their voting rights context. Where a voter must take to the courts to vindicate her right to vote, she should not be further deprived by an unfair process. Federal courts hearing cases about unfair election-challenge procedures have been reluctant to interfere and are thus overly deferential to the states. This Note offers a new approach for “electoral due process” claims—an approach that is properly preservative of voters’ substantive rights and their rights to a fair hearing

    Piracy and Due Process

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    This article explores in depth the law of nations, English domestic law, and English government practice from the late medieval period through the eighteenth century, and the U.S. constitutional law and government practice during the Founding and antebellum periods. I conclude that Chapman’s claims about due process and piracy suppression are incorrect. Both Parliament and the U.S. Congress; both the Crown and its counselors and U.S Presidents and their advisers; both the Royal Navy and the U.S. Navy; and commentators both English and American believed that (1) pirates on the high seas could lawfully be subject to extrajudicial killing, but that (2) the criminal justice system was usually the preferred approach to dealing with pirates, and when tried for their crimes in English or American territory respectively, accused pirates were entitled to due process of law

    DNA and Due Process

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    The U.S. Supreme Court in District Attorney\u27s Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not constitutionalize the issue by announcing an unqualified freestanding right, Chief Justice Roberts\u27s majority opinion proceeded to carefully fashion an important, but qualified and derivative procedural due process right. While denying relief to Osborne for narrow factual and procedural reasons, the Court\u27s ruling swept more broadly. The Court held that states with postconviction discovery rules, as almost all have enacted, may not arbitrarily deny access to postconviction DNA testing, and then pointed to the generous provisions of the federal Innocence Protection Act as a model for an adequate statute. The Court also continued to assume that litigants may assert constitutional claims of actual innocence in habeas proceedings. In this Essay, I explore the contours of the Osborne due process right, its larger implications for constitutional interpretation, and, more specifically, whether the decision has the potential to create pressure on the States to provide meaningful avenues for convicts to litigate their innocence

    Matters of Judgment: Give Due Process its Due

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    Big Data and Due Process

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    Today, electronic footprints may follow us wherever we go. Electronic traces, left through a smartphone or other device, can be tracked to the scene of a crime, or they can place a person far from a crime scene. By the same token, individuals may be falsely implicated due to errors in large government or commercial databases, and evidence of innocence may linger in such archives without ever coming to light. Professors Joshua Fairfield and Erik Luna and have done an important service by carefully introducing the problem of “digital innocence” and marking out areas in need of clear thinking and policy. In this online response to their wonderful piece, I discuss four additional problems at the intersection of big data and due process rights: (1) the need for developed electronic discovery rules in criminal cases; (2) the need to reconsider the meaning of Brady v. Maryland and the due process obligations of prosecutors and government agencies in the context of government data; (3) the parallel need to reconsider standards for effective assistance of defense counsel; and (4) the need for broader and better-adapted postconviction electronic discovery and remedies

    Habeas Corpus and Due Process

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    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. Following the September 11, 2001 attacks, the United States detained hundreds of suspected terrorists who later brought legal challenges using the writ. In the first of the landmark Supreme Court cases addressing those detentions, Hamdi v. Rumsfeld, the plurality chiefly relied on the Due Process Clause to explain what procedures a court must follow. Scholars assumed due process would govern the area. Yet in Boumediene v. Bush, the Court did not take the due process path and instead held that the Suspension Clause extended habeas corpus process to noncitizen detainees at Guant ´ anamo Bay. Boumediene correctly grounded the analysis in the Suspension Clause, not the Due Process Clause. The Court held that the Suspension Clause demands a traditional habeas process, simply asking whether the detention is legally and factually authorized. This view challenges the set of standards that judges currently use in executive detention cases and also has implications for domestic habeas; it could ground innocence claims in the Suspension Clause. More broadly, this Suspension Clause theory reflects commonalities in the structure of statutes and case law regulating habeas corpus across its array of applications to executive detention and postconviction review. Habeas review now plays a far more central role in the complex regulation of detention than scholars predicted, because habeas review does not depend on underlying due process rights. A judge instead focuses on whether a detention is authorized. As a result, habeas review can inversely play its most crucial role when prior process is inadequate. Put simply, the Suspension Clause can ensure that habeas corpus begins where due process ends
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