Due Process Requirements Research Articles

O impeachment na América Latina: entre o abuso parlamentar e o controle do Executivo

In the face of the frequent use of impeachment in Latin America after redemocratization in recent years, this study aims to analyze whether this mechanism continues to serve to control the presidential abuse of power, as idealized in the constitutions, or whether it has become a political maneuvering tool for the president's opponents. The hypothetical-deductive and comparative method was employed, along with bibliographical, doctrinal, and documentary research, especially Pérez-Liñán's study on the conditions that favored Latin-American political instability. It concluded that the open constitutional norms that institute impeachment must necessarily be interpreted in accordance with constitutional and Inter-American requirements of due process. However, they cannot prevent their arbitrary use by political opposition in parliament.

“Land Without Identifiable Ownership” in the Post-East Japan Earthquake Recovery: Lawful Land-Grabbing in Neoliberal Japan

AbstractThis paper, with a focus on the status of tsunami disaster victims affected by the 2011 East Japan Earthquake, investigates into the status of private property rights in facing with the reviving legal instrumentalism in Japan, under the campaign of land law reform for the elimination of “land without identifiable owners” in the name of facilitating the disaster recovery, by means of the “special zone” method or the designation of lawless areas where the normal time law is excluded, with the particularly targeted area for such exclusion being the constitutional requirements of due process and fair compensation in public taking. Under the extraordinary setting of absolute majority of conservative party at the National Diet in the aftermath of the 2011 great disaster, legislations in Japan during this decade have been characterized by a manifestation of neo-liberal policy, driving the entire Japanese legal system into a corner. Facts observed in present Japanese society are not different from those observed in other authoritarian regimes in Asia, including the phenomenon of “land grabbing” by the governmental projects, which Asia once experienced a century ago for the colonial land enclosure by “wasteland management.”

Real Property

This Article covers Real Property cases from Southwestern Reporter (Third) volumes 633 through 652 and federal cases during the Survey period that the authors believe are noteworthy to the jurisprudence on the applicable subject. A number of significant cases, mostly from the Texas Supreme Court, have been handed down during this survey period. The due process requirements for the scope of inquiry for substituted service have been promulgated in MAP Resources. Additional procedural issues for service on financial institutions, which were decided differently by various state and federal courts, were resolved in Moss. The Texas Supreme Court provided helpful guidance on the measurement of consequential damages in Signature, and offered a cautionary tale to practitioners about the drafting of consequential damage waivers in James. In another cautionary tale to practitioners, the Tyler Court of Appeals in Tiner addressed the enforceability of a fixed price 100-year option contract. Likewise, in Rancho Viejo, following guidance from the Texas Supreme Court, the San Antonio Court of Appeals narrowly interpreted a restrictive covenant to allow construction of a solid waste facility. The narrow interpretation of restrictive covenants was again reiterated by the Texas Supreme Court in JBrice. The supreme court has also addressed, in a case of first impression, the issue of implied revocation of an outstanding offer in Tauch. In premises liability cases, it also discussed the “dual capacity” for successor liability in Eagleridge, and the “necessary use” doctrine in Sandridge. The Texas Attorney General issued guidance on the meaning of “person” for purposes of nonjudicial foreclosures. Unfortunately, the limitations period for equitably subrogated lien claims, under Howard I and its prodigy, continued in Howard III. From a governance perspective, the Texas Supreme Court refined the fiduciary duties of directors in the Poe decision. Regulatory takings were addressed in Schrock, but with significant possible changes in jurisprudence raised in the concurring opinions. Additionally, the Texas Supreme Court jumped on the Dallas to Houston highspeed train project in defining an interurban electric railway.

New Legal Institution in the Hungarian Criminal Procedure System Enabling the Rapid Prosecution of Criminals

In Hungary, in 2017, the Act on Criminal Procedure (hereinafter: CPC) was re-created. The most significant reason necessitating codification was the fact that sometimes it took years from the commission of the crime to the prosecution of the perpetrator, a fact which had an extremely negative effect on both general and special prevention. Ensuring timeliness clearly formed the basis of enacting several legal institutions. The purpose of the proportionate prosecutorial motion is that it allows the prosecution service to present its position regarding the specific term and/or length of the criminal punishment or measure in the given case. If the accused has actually committed the crime and finds the sanction presented in the proportionate prosecutorial motion acceptable, he/she will confess the commission of the crime and waive his/her right to trial. A fundamental novelty of the CPC in the preparation of the trial is that it allows the criminal liability of the accused to be established at the preparatory hearing. The accused has the opportunity to plead guilty to the offence stated in the indictment, irrespective of the substantive gravity of the offence on which the proceedings are based. According to the provisions of the CPC, if the court has accepted the accused's statement of guilt, it will not examine the merits of the indictment and the question of guilt, and may not impose a more severe punishment or apply a more severe measure than the one proposed by the prosecution service. The new rules on the preparatory hearing have significantly reinterpreted the function of the formerly marginal preparatory hearing, which made it possible to convict the defendant rapidly, in compliance with the requirements of due process.

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.

Examining procedural fairness in anti-doping disputes: a comparative empirical analysis

While the principles of procedural fairness apply in anti-doping disputes pursuant to Article 8 of the Word Anti-Doping Code, 2021 (the Code), there has been limited research assessing whether due process requirements are applied consistently by national anti-doping tribunals. This paper investigates the extent to which the procedural requirements set out under the Code are followed in practice, with a focus on India, New Zealand and Canada, facilitating comparison between developed and developing jurisdictions. By providing an evidence-based examination of first instance anti-doping procedures, this study confirms existing theories on the overall lack of harmonization in anti-doping procedures. We undertook a frequency analysis on the full-text awards handed down by first instance anti-doping tribunals in the comparative jurisdictions and the findings highlight inconsistent application of timeliness requirements and access to legal representation. Critically, in India, disputes take significantly longer to be resolved than in Canada and New Zealand, while far fewer Indian athletes are represented by legal counsel. In all jurisdictions, athletes who were represented by counsel were more likely to see a reduction in their sanctions. The study provides empirical evidence of systemic issues associated with timeliness and access to justice in anti-doping tribunals across jurisdictions and reinforces the need to focus on capacity building and enforcement of procedural safeguards, especially in developing countries. Practical recommendations include strategies to better achieve compliance and harmonization in protecting the procedural rights of athletes, particularly those athletes affected by the current application of the Code where cultural and socio-economic barriers may exacerbate procedural issues.

Enforcement of foreign judgments, systemic calibration, and the global law market

Abstract There are important reasons for states to recognize and enforce the judgments of other states’ courts. There are also reasons that may militate against recognition or enforcement of certain foreign judgments, making it appropriate to calibrate or “fine tune” the presumption favoring recognition and enforcement so it is not applied too broadly. Most calibration principles, such as the principle that a judgment from a court lacking jurisdiction should not be recognized, are case-specific. However, one calibration principle that is, to our knowledge, unique to the law of the United States stands out: the principle of systemic calibration, according to which U.S. courts must not recognize or enforce foreign judgments “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” In this Article, we aim to shed empirical light on how U.S.-style systemic calibration operates in practice. We find that state-of-origin indicator scores related to systemic adequacy are on average higher when U.S. courts recognize or enforce foreign judgments than when they refuse to do so. Moreover, the probability of recognition and enforcement increases as these indicator scores increase. However, in only six of the 587 opinions in our dataset did a court refuse recognition or enforcement based explicitly on the systemic inadequacy ground. Thus, while the level of systemic calibration in U.S. courts is high, it is mostly achieved implicitly. Finally, even judgments from states with low systemic adequacy scores are sometimes recognized or enforced by U.S. courts.

Right of Appeal under Section 35 of the Arbitration Act of Kenya

An arbitral award is final and binding on the parties but may be set aside for failure to adhere to due process requirements. Section 35 of the Arbitration Act (Act hereafter) provides grounds for setting aside an arbitral award. It does not state whether decisions of the High Court on setting aside an arbitral award are final and thus cannot be appealed. In Nyutu Agrovet Limited v Airtel Networks Limited, the Supreme Court interpreted Section 35 to allow appeals on High Court decisions of setting aside an arbitral award. This paper analyses the Supreme Court decision and finds that it abrogated the internationally recognised arbitration principles such as party autonomy, the finality of arbitral awards and limited court intervention. Additionally, the paper discusses the implications of the decision on arbitral practice in Kenya. Using literature review and comparative jurisprudence, it advances that Section 35 does not allow appeals on decisions of the High Court. To this end, it proposes better interpretation techniques to safeguard the sanctity of arbitral awards.

Frontier Crimes Regulation (FCR): From Introduction to Abolition

When the British arrived at the North-West Frontier, it adopted several special measures to crush the resistance from Pashtun tribes and safeguard colonial interests. One of these special measures was the introduction of FCR, which was introduced to increase the conviction rate in criminal cases without the requirements of due process of law. This paper tries to present a detailed account of FCR from its introduction to its abolition. It highlights the circumstances which led to the introduction of FCR. It further explains how the British revised the FCR from time to time to expand its scope to make it better serve imperial interests. Its review by various commissions/committees and higher judiciary observations about it are also discussed in this paper. This paper is based on both primary sources like archival material and personal interviews as well as secondary sources.

Our land is banked: forest rights, consent and the invention of a legal exception as land banks

ABSTRACT Land banks are a newly created administrative mechanism managed by the Odisha Industrial and Infrastructure Corporation (IDCO) and the Revenue and Disaster Management Department. Their purpose is to provide large parcels of land to industries with minimal procedural hassles in the acquisition. Thus, the administrative authorities put in place an intricate web of legal interpretations that enable it to bypass due process requirements. The legal landscape in India’s forests transformed with the passing of the Forest Rights Act,2006 in the direction of democratisation and participation of forest-dwelling communities. An essential part of this legal framework was the right to free, prior, and informed consent of the village assembly. In this paper, through case studies and examples I argue that a space of exception is created within the law through the mechanism of land banks to prevent the applicability of the consent provision. This sophisticated legal interpretive exercise by the administrative authority results in the violation of the human right to free, prior, and informed consent of forest-dwelling communities in Odisha.

Observance of Due Process Rights in Capital Offence Trials: Assessing Nigeria through the Lens of International Instruments.

Observance of Due Process Rights in Capital Offence Trials: Assessing Nigeria through the Lens of International Instruments. Emmanuel Olugbenga Akingbehin Abstract The trial rights of a capital offender range from arraignment to sentencing. Section 33 of the Constitution of the Federal Republic of Nigeria 1999, authorizes a deprivation of life, if the execution is of a sentence of court, in respect of criminal offence, for which such person has been found guilty. The Criminal Justice Administration Act and the Nigerian Constitution, inter alia make provisions for the various safeguards aimed at protecting citizen‟s rights in ensuring due process in trial procedures, including the execution of death sentences. Also, the U.N ECOSOC has encouraged UN member states, in which death penalty has not yet been abolished to ensure that a defendant facing a possible death sentence is given all guarantees to ensure a fair trial. However, this research work has found that many capital offence trials in Nigeria have fallen short of international standards of fair trial. This paper is therefore aimed at analyzing the extent of compliance or otherwise, of the various stakeholders in the Nigerian criminal justice system, with the international due process requirements, in the legal processing of a capital offender at the trial stage. The paper, which is divided into six parts, delved on the analysis of fair hearing and trial within a reasonable time in the public before a court or tribunal. The author also appraised capital offender‟s rights to presumption of innocence, adequate time and facility to prepare defence and mandatory legal representation. The author made his findings and proffered appropriate recommendations. Full Text: PDF DOI: 10.15640/jlcj.v9n1a4

Procurement Corruption and Artificial Intelligence: Between the Potential of Enabling Data Architectures and the Constraints of Due Process Requirements

This contribution argues that the expectations around the deployment of AI as an anti-corruption tool in procurement need to be tamed. It explores how the potential applications of AI replicate anti-corruption interventions by human officials and, as such, can only provide incremental improvements but not a significant transformation of anti-corruption oversight and enforcement architectures. It also stresses the constraints resulting from existing procurement data and the difficulties in creating better, unbiased datasets and algorithms in the future, which would also generate their own corruption risks. The contribution complements this technology-centred analysis with a critical assessment of the legal constraints based on due process rights applicable even when AI supports continued human intervention. This in turn requires a close consideration of the AI-human interaction, as well as a continuation of the controls applicable to human decision-making in corruption-prone activities. The contribution concludes, first, that prioritising improvements in procurement data capture, curation and interconnection is a necessary but insufficient step; and second, that investments in AI-based anti-corruption tools cannot substitute, but only complement, current anti-corruption approaches to procurement.

Substantive Due Process for Sexually Dangerous Individual Classification

In In re R.A.S. , 930 N.W.2d 162 (N.D. 2019), the Supreme Court of North Dakota ruled that the district court erred in determining that R.A.S. was a sexually dangerous individual. The Supreme Court of North Dakota found that the state failed to meet substantive due process requirements establishing

Lenity Before Kisor: Due Process, Agency Deference, and the Interpretation of Ambiguous Penal Regulations

When interpreting punitive regulations that are ambiguous, lower courts face a seemingly stark choice: Either they follow the Supreme Court’s instruction in Kisor v. Wilkie and defer to the enforcing agency’s typically more severe interpretation, or they rely on the venerable rule of lenity—also endorsed by the Supreme Court—and adopt the less severe interpretation. This choice need not be made: Kisor deference and lenity do not clash when properly applied because these two doctrines operate at different ambiguity thresholds. Lenity tips in favor of defendants when a regulation’s meaning is subject to “reasonable doubt,” whereas agency deference only applies when a regulation is “genuinely ambiguous”—a more searching standard. Lenity, therefore, must apply before agency deference. This order of operations makes sense both of the doctrines and their justifications. Lenity’s constitutional underpinnings—in particular, the due process requirements of “fair notice” and conviction “beyond a reasonable doubt”—take precedence over the lower-order policy rationales behind agency deference.

It’s No Breakfast Club: A Look at the Due Process Requirements of Children in Private Residential Treatment Centers

In many states, youths are put into private residential treatment centers (RTC) without the youths’ consent or judicial review of the admission decision. Every state has a statute that addresses the due process rights of a person being civilly committed to a state-run psychiatric institute. While some states have statutorily extended those rights to youth, and some states have gone as far as to expand the statutes to include private institutions, there remains a gap in the protections for many youth in all states. This purpose of this article is to argue that a federal statute should be enacted to ensure equal protections across states lines that will prevent private hospitals from admitting youth without meeting the admission criteria for civil commitments. As the Supreme Court has recognized that these youth are entitled to due process rights, the statute should extend protections to the youth. The federal government has the power to enact legislation that protects citizens’ Fifth and Fourteen Amendment rights. Private residential treatment centers must be treated as state actors when determining patient rights. Children have a substantial liberty interest in not being confined unnecessarily. All involuntary civil commitments must be required to conform to the civil commitment requirements that an individual is found to pose a risk of self-harm or harm to others.

Void the Analogue Act

This article defends Justice Neil Gorsuch’s suggestion that the Federal Analogue Act (“Analog Act”), a statute criminalizing all substances “substantially similar” to Schedule I and II narcotics, should be voided for vagueness using the same rationale employed by Johnson v. United States. This article also explores alternative rationale sfor voiding the statute as unconstitutionally vague. Whether under Johnson or traditional void for vagueness doctrine, the Analog Act fails to satisfy criminal due process requirements. In its attempt to draft a law broad enough to prospectively criminalize all possible future narcotics, Congress created a statute so vague as to prevent any advance knowledge of the substances criminalized while also leaving every substance in a superposition of legal states as both legal and illegal. “Substantially similar” possesses no statutory or scientific definition, leading juries to routinely reach opposite conclusions on the same substance’s legality and depriving defendants of advance notice. No scienter requirement cures this vagueness. In McFadden v. United States, the Supreme Court’s attempt to resolve the decades’ old scienter circuit split effectively opened the permissible range of scienter so wide as to permit prosecutions for mundane substances: possessing chocolate while knowing it contains a controlled substance analog permits prosecution for methamphetamine possession. The Analog Act’s vagueness and narrow scope also frustrate prosecutions for even the most dangerous analogs, a failure hobbling law enforcement and directly contributing to the proliferation of synthetic cannabis, the MDMA-like “bath salts,” fentanyl analogs, and the coming crisis of unregulated benzodiazepines. Yet at the same time the Analog Act’s great breadth threatens the emerging hemp industry by criminalizing CBD and other cannabinoids intended by Congress to be exempt from criminal restrictions. As illustrated by Congress’s synthetic cannabis legislation and the DEA’s categorical ban on fentanyl analogs, the Analog Act has long outlived its marginal value as flexible modern substance-specific prohibitions protect against emerging psychoactive substances without trampling constitutional protections.

Obtaining Documents From the Opponent in International Commercial Arbitration

This dissertation provides an analysis of the scope and procedure of obtaining documents from the opponent in international commercial arbitration. The goal of this research is to provide an in-depth study of the myriad of detailed questions regarding the procedure and scope of obtaining document production which goes beyond analyzing the differences between common law and civil law practices and takes an international commercial arbitration perspective. The primary aim, however, is not to supply definite answers, but rather to present possible best practices by, for example, discussing various approaches and problematic areas of the topic and also providing the reader with awareness of different aspects that should be taken into account when dealing with document production. To reach this aim, the method of legal dogmatics is predominantly employed. The core of this research is in the interpretation and systematization of international arbitration sources, especially soft law, which provide detailed guidance regarding document production, against the background of legal principles of arbitral procedure. The challenge of conducting research regarding document production is that procedural timetables, document requests, objections and procedural orders are confidential. However, the author of this dissertation had the rare opportunity to research files of ICC cases and anonymized examples from the chosen cases serve as valuable source regarding international arbitration practice. The research is divided into five substantive chapters. In Chapter 2, the framework for document production is discussed. In Chapter 3, the procedure and requirements of the request for documents is analyzed. Here im-portant questions are considered, such as what is the basis of a party’s right to obtain documents, how to delimit a narrow category of documents, what is meant by relevance and materiality, can a party request documents relating to issues it does not have the burden of proving and also when are the documents considered as being in a party’s control. In Chapter 4, the attention turns to the possible bases for an objection to a document request, such as privilege, confidentiality, data protection, unreasonable burden of production etc. Chapter 5 contains analysis of the questions connected to the actual production, including the tribunal’s order to produce or dismiss a production request, the form of production and the consequences of non-compliance, i.e. adverse inferences and financial consequences. In Chapter 6, the issue of national courts’ assistance in obtaining documents from the opponent is addressed. The detailed results of the analysis are presented throughout this dissertation and the significance of this research is in the discussion of the specific questions. Nonetheless, on the basis of the conducted study certain key find-ings are also drawn. First, the research shows that many issues can be resolved on the basis of balancing principles of international commercial arbitration. Consequently, there is no need for more regulation. Arbitration needs to remain flexible. Predictability should not be achieved on the level of arbitration rules and soft law, but in specific arbitration proceedings. Second, there are important legal implications relating to production of electronic documents and participants of the arbitral process need to be aware of them. Third, arbitrators are very cautious when making decisions as to not violate possible due process or public policy requirements. In fact, only one arbitral award has been set aside due to a reason connected to a document production question. Finally, with respect to many questions regarding the scope and procedure of document production, one can refer to an international commercial arbitration approach.

Online Dispute Resolution for Small Civil Claims in Victoria: A New Paradigm in Civil Justice

This article seeks to explore some of the implications of integrating information and communications technology into judicial processes to resolve small civil claims. It argues that, as ODR moves from individual private-sector initiatives to widespread public sector institutionalisation, governance and value questions will need to be seriously considered. This is because questions regarding the appropriateness of the use of certain ODR systems in the resolution of small claims and consumer disputes persist, especially in relation to the use of systems which are fully autonomous. For example, how are fundamental due process requirements to be balanced against the economic constraints of resolving low value disputes? What are the limits to the evolution of civil justice to make it more accessible? It is argued that, while ODR holds vast potential for increasing access to justice, attention needs to be given to the dispute system design to ensure that it achieves that goal and does not result in the erosion of fundamental values of civil justice, including accessibility, transparency, legal validity and accountability.

Legal Strategies for Reining in 'Unconscionable' Prices for Prescription Drugs

Policy discussions about the affordability of prescription drugs in the United States are infused with the theme that drug prices are unconscionably high. Many of the policy interventions proposed in Congress, the White House, and the states adopt this frame, authorizing regulatory action when prices exceed particular thresholds or otherwise constitute “price gouging” on the part of drug companies. Unsurprisingly, such initiatives have prompted legal challenges by the biopharmaceutical industry. State laws in particular are vulnerable on a number of grounds. In this Article, we focus on one avenue of challenge that has received little scholarly attention in the context of drug pricing: void-for-vagueness claims under the Due Process Clause. These challenges allege that the laws’ definition of “excessive” or “unconscionable” drug prices is so ambiguous as to fail basic requirements of procedural due process. To better understand how federal and state legislation can be designed to survive vagueness challenges, we review and extract lessons from four adjacent areas of law in which a standard of “unconscionable” or “excessive” price has been operationalized: (1) price-gouging laws relating to times of emergency, (2) contract law, (3) consumer lending law, and (4) public utilities rate regulation. We analyze the approaches taken in each field and their potential applicability to the prescription-drug context. We conclude that consumer lending law offers the most promising model, particularly if advanced via federal legislation, and offer a series of recommendations for drafting legislation aimed at identifying and curbing excessive drug prices.

An Expanding Frontier of Administrative Law: The Public Life of Private Actors (A Functional Approach)

This exploratory Article proposes to extend the reach of administrative law, in the form of public law principles, to private actors performing public services and regulatory activities without delegated executive power. These general principles seek to govern the relationship between these private actors and third parties. The administrative law-like principles to be applied by private actors vary from case to case. Some of them are transparency, impartiality, expertise, representativeness, reason giving, proportionality or antidiscrimination. In other areas, requirements of due process are imposed and arbitrary and unreasonable conduct is not permitted. To understand the reasons for the application of public law principles to those private bodies it should be borne in mind that non-state actors affect members of the public to a significant degree, and that public authorities and the private sector share responsibilities in such areas because they do not work in isolation. Ultimately, if public authorities are subject to legal principles inherent to public services and regulatory activities, it may be expected that private bodies act before third parties in a comparable, equivalent and compatible manner to that of the public authorities, in that all of them are part of a more holistic whole. This expansion of principles has two immediate consequences: (1) public law principles complement private law as long as private bodies perform these activities, and (2) a new layer of administrative law scholarship becomes functional: it is the nature of the activity being exercised and not the actor that determines for the application of these principles.