Due Process Rights Research Articles

Litigation politics: social movement activity in campus sexual assault litigation

AbstractCritics point to increasing private lawsuits filed by students accused of campus sexual assault as evidence that Obama-era Title IX guidance overcorrected and favored victims at the expense of the due process rights of the accused. This overcorrection narrative powerfully reshaped the debate surrounding campus sexual assault and ultimately contributed to the rescinding of the guidance. Existing analytical tools from legal mobilization scholarship – emphasizing the deployment of litigation by social movement actors – are not equipped to identify the origins and dissemination of this political narrative. Drawing from legal complaints, media coverage and interviews with lawyers, we show how private practice attorneys with no visible movement ties helped craft the overcorrection narrative from individual lawsuits by (1) embedding political claims in legal filings, (2) amplifying the narrative in media and (3) collaborating with advocates in quantifying the litigation trend. We extend prior scholarship and illustrate how lawsuits can be both a vehicle of political storytelling and the story itself. We further argue that the ideology of liberal legalism can mask the politics of private lawsuits, making litigation a useful tool for social movement efforts to mobilize support for legal reform.

Ethical Implications of AI in Criminal Justice: Balancing Efficiency and Due Process

The integration of Artificial Intelligence (AI) into criminal justice systems presents a complex landscape of opportunities and challenges. This research article critically examines the ethical implications of AI applications in various facets of criminal justice, from predictive policing to sentencing algorithms. While AI promises enhanced efficiency and data-driven decision-making, it simultaneously raises significant concerns about fairness, transparency, and the preservation of due process rights. This study employs a multidisciplinary approach, combining legal analysis, ethical philosophy, and empirical research to evaluate the current state of AI in criminal justice and project future trajectories. We analyze case studies from multiple jurisdictions, highlighting both successful implementations and controversial failures of AI systems in law enforcement and judicial processes. Our findings reveal a tension between the pursuit of efficiency through AI and the fundamental principles of due process. We identify several key ethical challenges, including algorithmic bias, lack of transparency in decision-making processes, and the potential erosion of human judgment in critical legal determinations. The research also uncovers disparate impacts on marginalized communities, raising concerns about the exacerbation of existing inequalities within the justice system. To address these challenges, we propose a comprehensive ethical framework for the development and deployment of AI in criminal justice. This framework emphasizes the need for continuous human oversight, regular audits of AI systems, and the establishment of clear accountability mechanisms. We argue for a balanced approach that leverages the benefits of AI while safeguarding individual rights and maintaining the integrity of judicial processes. The article concludes by outlining policy recommendations and best practices for lawmakers, judiciary, and law enforcement agencies. These recommendations aim to foster responsible innovation in criminal justice AI, ensuring that technological advancements align with ethical standards and constitutional protections. Our research contributes to the ongoing dialogue on AI ethics in the legal domain and provides a roadmap for the ethical integration of AI in criminal justice systems worldwide.

A Federal Inmate’s Right to Stay Home

Since the start of the COVID–19 pandemic, the Federal Bureau of Prisons (“BOP”) has, for the first time in history, placed tens of thousands of inmates onto home confinement. Likely due to the unprecedented nature and rapid release of inmates to contain the virus, the BOP failed to timely update their policies and procedures surrounding the disciplinary system of inmates on home confinement. This failure to update resulted in the BOP removing inmates from home confinement and placing them back in prison for minor violations. Furthermore, when the BOP chose to remove an inmate from home confinement, it did so without any proceeding, hearing, or even an explanation. The lack of due process occurred because the BOP continued to use its Inmate Discipline Program Statement—procedures for addressing infractions in prison—as a model for remanding inmates on home confinement back to prison. Instead, the BOP should be following the two-step due process procedures the Supreme Court has outlined for those inmates on parole—a program that is nearly indistinguishable from home confinement. Inmates on home confinement are entitled to the constitutional protections of this two-step process because they have a liberty interest in remaining on home confinement. To ensure the BOP protects the due process rights of inmates on home confinement, this Comment proposes a change in the BOP’s disciplinary system. This Comment first proposes that the BOP promulgate the Morrissey procedural due process rights for inmates on home confinement into the Code of Federal Regulations. This Comment secondly proposes that the BOP revises its Inmate Discipline Program Statement to reflect the prohibited acts and available sanctions that uniquely apply to inmates on home confinement. Collectively, this new regulatory scheme will afford inmates on home confinement the constitutional protections guaranteed to them by the Fifth Amendment, and it will provide clarity to courts when determining the constitutionality of remanding inmates to prison.

Balancing Justice in Pixels: Legal and Constitutional Implications of Virtual Court Sessions in Ghana

The legal sector is experiencing a transformative shift towards the adoption of virtual court sessions to enhance efficiency, accessibility, and transparency within judicial systems. However, this paradigm shift is not without its challenges. This research examined the implementation of virtual court sessions in Ghana, focusing on the legal and constitutional implications of the Practice Direction issued by the Chief Justice. While digitalization of court proceedings holds promise, concerns regarding privacy, technological disparities, and the preservation of due process rights loom large. The research drew on a recent case of Law to affirm that administrative/practice directives fall outside the purview of Laws of Ghana. The study employed the Innovation Diffusion Theory as the lens for analyzing and proposing a solution framework to sustain virtual court systems in Ghana. The findings of the study included the implementation strategy incompatibility of virtual court hearing with the existing legal framework for observing due process and the fundamental rights of citizens. The solutions require a balanced approach that acknowledges the strengths of both the traditional court system and technology. To sustain virtual court hearing, strategies for addressing implementation and legitimacy concerns, enhancing the compatibility of virtual court technology security with existing legal framework and practices, and ensuring long-term adherence to constitutional requirements should be paramount. Substantive law and regulation including relevant constitutional amendments may be necessary to ensure smooth implementation. Keywords: e-Justice system, Implementation, Virtual Court Sessions, Practice Direction, Due Process, Proceedings, Ghana.

Postdoc Identity, Jurisdictional Issues, Ideologies, and Unions: Considerations in Organizing Professionals

This study of U.S. postdocs and unions analyzes the public discourse of national entities, a national postdoc advocacy group, and of local postdoc unions and their collective bargaining agreements. The analytical focus and findings address: (a) postdocs’ identity as “professors-in-training” or exploited employees; (b) the professional jurisdictional issues and due process rights identified as problematic and on which postdocs’ bargaining is focused; and (c) broader ideologies and social justice issues that characterize postdocs’ working conditions and that inform their mobilizing. The findings offer insights into organizing professionals in a time when their status/work is being degraded.

Challenges in Substantive Due Process Litigation

This Article presents the results of an empirical examination of litigation involving substantive due process claims. I have compiled a dataset consisting of every case in which a federal appellate court adjudicated a substantive due process claim during the year 2019—a total of 98 cases. This census yields important information about the context in which substantive due process rights are litigated and articulated within our civil rights enforcement scheme. As a threshold matter, I show that 92% of substantive due process cases come to the federal appellate courts as actions brought under 42 U.S.C. § 1983. This information underscores that, for the most part, substantive due process litigation in the federal courts is litigation under Section 1983. As a result, substantive due process litigation is subject to the doctrinal challenges that apply to Section 1983 litigation more generally. This Article takes stock of these challenges and develops an account of the intersection between substantive due process rights and Section 1983 litigation. It considers four challenges for civil rights plaintiffs common to many cases filed under Section 1983: standing to seek injunctive relief, the qualified immunity defense, the policy or custom requirement for municipal liability, and availability of attorneys’ fees under 42 U.S.C. § 1988. Drawing on both quantitative and qualitative information from the dataset, this Article suggests that each of these areas also presents a challenge for plaintiffs seeking to vindicate substantive due process rights. Further, the vagueness and breadth of many substantive due process rights compounds the challenges presented by Section 1983 litigation in other contexts. This Article concludes by briefly considering the implications of its findings for lawyers, courts, and future researchers.

The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization

The U.S. Supreme Court’s reasoning in Dobbs v. Jackson Women’s Health Organization cannot be taken seriously. The Court’s stated ra-tionale for rejecting continued protection of the abortion right—that abortion is not deeply rooted in nineteenth century history and tradi-tion—applies with equal force to other substantive due process rights that the Dobbs Court repeatedly insisted were not under threat even without considering stare decisis, including contraception, sexual inti-macy between consenting adults, and same-sex marriage. One should add inter-racial marriage and protection from involuntary sterilization to that list. Rather than applying its draconian version of the “history and tradition” test in a principled fashion, the Court decided the case based upon moral opposition to abortion and a failure to appreciate that abortion bans old and new are also shaped by gender bias, not just by concerns for fetal life. Further evidence for this realist account of the Court’s decision can be found in the Dobbs Court’s disregard of self-restraint both procedurally and in the opinion-writing process. It is not going too far to charge the Court with having acted lawlessly. A future Court will readily be able to explain why it is overruling Dobbs.

Secrecy and Transparency in Substantive Due Process Litigation

A few years before the recomposed Court rejected abortion rights in Dobbs, it sustained several healthcare providers’ challenge to Louisiana abortion restrictions in June Medical. History will remember that 5–4 decision mostly as one of the last major cases to interpret and apply the Casey framework. But in the little-noticed background of the June Medical litigation, a significant dispute over sealed court records boiled over. On one side, plaintiff physicians sought anonymity and confidentiality in light of potential threats to their physical safety and patient privacy. On the other side, Louisiana asserted the public’s longstanding right to access court records and its own right to include information from June Medical companion cases in its Supreme Court briefing. Ultimately, the Fifth Circuit agreed with Louisiana, vacating the sealing order. June Medical evokes a larger dispute simmering in federal and state courts over public access to litigation information. Modern commerce and contemporary life generate an unprecedented volume of data. American civil discovery provides litigants with tools to discover and collect much of it. And courts have long recognized the public’s First Amendment and common law rights to inspect and copy public court files. Moreover, the internet and advent of electronic filing have transformed once obscure paper court files into easily accessible databases. Proponents of expanded sealing and secrecy contend that this status quo threatens litigants’ privacy and intellectual property. Proponents of more transparency posit that public access to the evidence underlying court action is essential to the integrity and proper functioning of the judiciary, as well as to public health and safety. This Article examines a largely unexplored angle of this debate: How should courts treat the unique privacy interests of litigants asserting substantive due process claims in the context of the public’s right to access litigation information? Part II explains the public’s court-access rights. Part III first considers whether forced identity revelation might infringe substantive due process rights. After concluding that infringement is possible, but recognizing that courts will often avoid the constitutional privacy questions posed by these scenarios, Part III goes on to consider the use and effects of subconstitutional privacy and access principles in rights cases where parties seek to proceed pseudonymously.

Right to Counsel in Civil Cases: Protector (and Source?) of Substantive Due Process Rights

Right to Counsel in Civil Cases: Protector (and Source?) of Substantive Due Process Rights

Abeyance agreements: Evading Accountability for disciplinary actions?

Schools across the United States use abeyance agreements as an alternative to suspension or expulsion, yet little is known about them. These agreements allow students to avoid or reduce suspensions or expulsions, if they meet the terms of the agreement and waive certain due process rights. David Perrodin argues that these agreements enable school districts to circumvent requirements to report disciplinary data, a requirement intended to ensure schools’ disciplinary practices are fair and nondiscriminatory. These agreements appear to give students on the brink of suspension a second chance, but the terms are sometimes difficult to follow, and once the terms are broken, students may be subject to suspension without due process. They also bring disciplinary investigations to a quick close, sometimes without a clear understanding of the root causes of the misbehavior. And the lack of data about abeyance agreements means that authorities lose information that is useful in identifying potential safety threats or uncovering schools’ violations of students’ rights. Perrodin argues for the elimination of abeyance agreements for school discipline or for more standardized processes that can be tracked and that do not interfere with students’ rights.

Article: A Wolf in Sheep’s Clothing: Overlooked Procedural Deficiencies in ICSID’s Annulment Structure

i style=""Over the past several decades, the International Centre for the Settlement of Investment Disputes’ annulment procedure has proved an object of consternation for states and investors alike. The substantive principles of Article 52 of the ICSID Convention are commonly criticized as either too expansive or too narrow. The author contends that this criticism is misplaced, however, and that it is procedural deficiencies which will plague ICSID’s annulment proceedings in this time of broad investor-state dispute reform. Overconcentration of annulment committee appointment and challenge power in the hands of the Chairman of the ICSID Committee and ICSID Secretariat, compounded by continued problems of ‘double-hatting’ at the annulment level, threaten the due process rights and autonomy of parties to ICSID annulments. The author proposes a feasible restructuring of annulment appointment and challenge procedure under the ICSID Arbitration Rules as a potential rectification of these procedural flaws, including a dispersal of appointment power, a new pool system for annulment panel members, and the creation of an independent review body to consider challenges to annulment panel members.

Dobbs v. Jackson and the Revival of the States' Rights Constitution

AbstractThe US Supreme Court's decision in Dobbs v. Jackson Women's Health ended the federal right to an abortion, first pronounced in the 1973 case Roe v. Wade. Dobbs has immediate implications for American women, but it also exposes a growing hostility by the court to the doctrine of ‘substantive due process’ on which many other federal rights rely. This article argues that the court's weakening of substantive due process is a direct challenge to the constitutional transformation wrought by the Fourteenth Amendment following the Civil War. The amendment asserted a national standard of fundamental rights, profoundly rebalancing power away from the states. Should the Supreme Court extend the logic of Dobbs, the national basis for many substantive due process rights will be removed. The court is reviving a kind of states' rights constitutional thinking hitherto unseen by the current generation of Americans.

Due Process and Accountability Under Transitional Justice: Evidence from Mosul, Iraq

Do citizens care about due process rights when holding insurgent groups accountable for violence? We examine public perceptions of justice and fairness in judicial proceedings brought against suspected Islamic State (ISIS) militants and their supporters in Mosul, Iraq. We conducted a survey of Mosul residents and people in ISIS-affiliated displacement camps outside Mosul to evaluate public support for detainee due process rights. Using a trial and punishment survey experiment, we find that Mosul residents, while favoring capital punishment for ISIS involvement, are also sensitive to procedural due process rights of the accused. People with self-reported ISIS affiliations, in contrast, are more concerned with substantive due process, and do not see capital punishment outcomes as fair, regardless of procedural considerations. Although rebel group sympathizers and opponents have clashing perspectives on what constitutes equitable punishment for participation in insurgency, both recognize the importance of due process rights to long-term peace and security.

Gender Equity and Due Process in Campus Sexual Assault Adjudication Procedures

ABSTRACT Title IX prohibits sex discrimination in federally funded education programs. In 2011, the Department of Education under President Obama issued a Dear Colleague Letter (DCL) advising schools of their obligation to protect Title IX rights by more effectively responding to campus sexual assault. Many observers hoped that this would promote gender equity. Yet it also generated a backlash, as critics charged schools with stripping accused students of due process rights in campus adjudication procedures. We conducted content analysis of the 2016–17 sexual misconduct policies of 381 American colleges and universities to analyze how well adjudication procedures created in response to the DCL attended to both gender equity and due process requirements. The state of adjudication at this pivotal moment provides an empirical baseline from which to assess equity in university sexual misconduct procedures. We found that most school procedures for investigating and adjudicating complaints of sexual misconduct included hybrid models that incorporated due process protections while acknowledging (but often not fully meeting) Title IX obligations. To our knowledge, this is the only large-scale national study of how schools have reconciled Title IX and due process rights in adjudication procedures.

Algorithmic Governance in Computational Antitrust—a Brief Outline of Alternatives for Policymakers

Computational antitrust consists of empowering competition authorities with modern techniques of artificial intelligence (AI), machine learning (ML), big data and associated solutions in the hope of enhancing antitrust enforcement and equipping it to deal with the dynamics of increasingly digitized markets. However, such power may come with risks of crossing the red lines posed by constitutional and public law requirements that limit and balance State discretion, such as fundamental due process rights, equity, and personal data protection. In this article, we explore some contributions from the algorithmic governance literature to help mitigate those risks and safeguard future computational antitrust solutions.

Judiciário midiatizado: norma (direitos fundamentais) versus experimentação social

Abstract We propose a study of judicial practice in a society undergoing mediatization. We noticed that the way the procedural actors behave, in the context where the institutions are crossed by mediatization logics, tensions the instituted. Social experimentation pressures the norm (and fundamental rights). In this context, we consider it productive to make methodological reflections on how to research within the legal-communicational interface. After contextualizing the present moment (judicial activism) mobilizing the concept of mediatization, we used the concept of interactional devices to investigate the two empirical objects selected for the study of cases. The first, the dispute over the position of the cameras in the testimony of former President Lula before the ex-judge Sérgio Moro. The second, the debate about the meaning of being a journalist, mediated by the judicial practice in the judicial process of blogger Eduardo Guimarães. In both cases we notice the phenomena of judicial activism and judicialization becoming more complex by mediatization. We perceive the fundamental right of due process and the constitutional guarantee to the secrecy of the source being strained by experiments that go beyond canonical legal logics, putting at risk indispensable rights to the Democratic State of Law.

Between State Aid, Trade and Antitrust: The Mixed Procedural Heritage of the Foreign Subsidies Regulation and the Overarching Principle of Non- Discrimination

The FSR intends to fill a regulatory gap between trade law, State aid and antitrust law, and achieves this through a unique blend of familiar concepts and rules, drawing from the rich legal traditions of the EU State aid, antitrust, and trade defense regimes. This legal inheritance can be observed throughout the FSR’s procedural framework, including the structure of its review procedures, the Commission’s investigative powers, and the rights of defence of undertakings. Given its legacy, there will be a continuing dialogue between the FSR and these other regulatory systems, possibly with the FSR exerting its own influence, such as on due process rights under the State aid regime.

Utilización eficaz de las tecnologías de información y comunicación en procesos sancionatorios y responsabilidad fiscal

The objective of the article was to discuss the relationship between information technologies in the face of the sanctioning processes and fiscal responsibility, which occurred in the territorial tax control bodies, spaces and which more resources are required in technology with specific purpose for this purpose, taking advantage of the moment of the validity of Legislative Act 04 of 2019 in Colombia. Methodologically, the documentary research design near the critical essay was used. To illustrate the arguments and views of the research team, it shows situations in which the administrative process of sanctioning and fiscal responsibility could be improved, emphasizing the hypothesis that the use of information technologies allows the strengthening of the fundamental right of due process of those investigated. It is concluded that, when technological tools are extended to the institutionalist of the Colombian State, it is possible to have a better approach with citizenship, which generates a positive expectation in meeting their needs, being the essence of the Social State of Law to build at all times a democracy of results that transcends procedural formalities and expands social justice.

Meeting the Challenge of the Preventive State: Due Process Rights and the Terrorism Suppression (Control Orders) Act 2019

This article focuses on the control order regime introduced by the Terrorism Suppression (Control Orders) Act 2019 and its implications for due process rights. Control orders are formally civil, and so the heightened criminal procedural protections in the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights) ostensibly do not apply. But the simplicity of the criminal–civil binary belies the hybridity of control orders. In this respect, control orders capture in microcosm the larger policy shift towards a "preventive state" which, rather than relying on ex post facto denunciation, pre-emptively incapacitates threatening individuals before they commit harm. This article assesses how we should deal with control orders' hybridity. It suggests that on the basis of current authority, control orders would not attract the criminal procedural protection in s 25 of the NZ Bill of Rights. Instead, they will be governed by s 27(1), which secures a right to natural justice. It then critically assesses this result. Drawing on the work of Andrew Ashworth and Lucia Zedner, it canvasses four possible approaches to control orders. It argues that, in order to facilitate engagement with their distinctive and problematic features, control orders ought to be distinguished from punishment and dealt with under other provisions of the NZ Bill of Rights. This should stimulate discussion about the kind of procedural protections that are appropriate to safely balance the liberty interests of the subject against legitimate security concerns.

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

AbstractIn Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents‐based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.