Due Process Requirements Research Articles

Judicial Review and the Limits of Arbitral Authority: Lessons from the Law of Contract

Arbitration may be conceptualized either as a species of adjudication or as a species of contract. In the former model, the arbitrator is a private judge, hired by the parties but tasked with performing the same sorts of functions that public judges normally perform: finding facts and applying predetermined rules (normally legal rules) to those facts in order to assign rights and obligations. In the latter model, the arbitrator is a reader, serving as the parties' agent designated by them in advance to supply the terms of their agreement that they did not foresee and that are necessary to resolve a conflict between them. Scholars concerned with the expansion of binding contractual arbitration into public law areas such as employment discrimination have argued that arbitration should be subject to the requirements of due process. Application of due process to arbitration would almost certainly require some degree of judicial oversight beyond the minimal judicial review currently allowed. Courts have resisted those calls, in part by invoking the contractarian model of arbitration. Courts insist that arbitration is a purely private matter and that no state action is involved because court enforcement of arbitral awards is equivalent to court enforcement of private contracts generally. In this article, I argue that rigorous application of the contractarian model would require significantly greater judicial review of arbitral awards than courts have acknowledged. Under the contractarian model, the award is the equivalent of a contract term agreed upon by the parties ex ante. When an arbitrator issues an award that denies a claimant rights the claimant could have enforced in court, the claimant can be understood to have waived its rights with respect to that claim. That waiver functions, in effect, like an exculpatory contract. Basic principles of contract law hold exculpatory contracts unenforceable in many areas, including intentional torts and the provision of medical services, in which arbitration is most controversial. I contend that these principles compel heightened judicial review of arbitral awards in those areas.

The Arbitral Tribunal's Role in Default Proceedings

THE BOTTOM-LINE test of an arbitral tribunal's performance of its duty is whether the award can be set aside under the local law of an applicable jurisdiction or recognition or exequatur thereof refused. One of the reasons justifying the refusal of exequatur under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (‘New York Convention’) provided for under Article V(l)(b) is as follows: > Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: ... > > (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case.1 This is a fundamental principle, encapsulated in the Latin expression audi alteram partem , which requires that each party must be given a fair and reasonable opportunity to present its case and to answer the case of the opposing party. Many jurisdictions expressly condition annulment or refusal of recognition or exequatur of arbitral awards on this basis.2 This principle is one example of the more general requirement that the parties be accorded due process or natural justice.3 The question arises how this requirement of due process is to be ensured in proceedings where one of the parties does not participate. It is more common that the respondent defaults than the claimant and it is clear that there is more of a conundrum for the arbitral tribunal where the non-participating party is the respondent. There is an initial question: should the arbitral proceedings continue? Only if that question is answered in the affirmative, does the question arise of …

Prolongaciones a partir de Laudan

La asimilación de la "duda razonable" al proceso penal español como estándar de prueba reporta grandes beneficios además de que encuentra un acomodo más garantista del que tiene en su ambiente jurídico originario, en los sistemas de common law Esto, debido a la obligación de jueces y jurados de motivar en la sentencia o el veredicto ese particular aspecto. Con ello, por un lado se legitima la decisión jurisdiccional en la medida en que sólo una duda bien razonada acredita ser una "duda razonable". Por otro, porque sólo cabe el control (procesal y extraprocesal) de lo público o de lo publicado, no de lo que se enclaustra en el recinto mental del juzgador.

The Law: Can You Sue the White House? Opening the Door for Separation of Powers Immunity in Cheney v. District Court

There is an old saying, You can't sue city hall. The reference is that the executive is immune from lawsuits, so don't bother with litigation. It will just be a waste of time and resources. Cynics have interpreted executive immunity as an open invitation to secrecy, corruption, and abuse of power. By making executive branch officials immune from court proceedings, critics argue that the Executive becomes above the law (see, e.g., Berger 1974). Over the years, though, legislative bodies have passed numerous laws designed to promote open government and to hold executive officials accountable to the other branches of government and to their constituents. These laws reach all the way to the highest level of government in American society: the White House. (1) Nevertheless, just because Congress wants to hold the president accountable does not necessarily mean that you can take the White House to court. Over the course of the past few decades, creative lawyers in the executive branch have asserted a variety of privileges and immunities to shield America's highest executive officials, the president and vice president of the United States, from both criminal and civil proceedings. The challenges naturally raise important constitutional questions, which the federal courts are often asked to address. (2) So when exactly can you sue the president? In the last three decades, the task of answering this question has ultimately fallen on the United States Supreme Court. Beginning with the rejection of President Richard Nixon's claim of executive privilege to prevent discovery in a criminal proceeding, the Supreme Court has offered some broad parameters for holding the president in check while at the same time preserving the balance between the three branches of the federal government. (3) This year, however, the high court was asked to settle a less clear-cut controversy: can federal courts compel the president or the vice president to disclose documents through discovery to private litigants without violating the separation of powers doctrine? While the Supreme Court failed to provide a definitive answer in Cheney v. District Court, it did indicate that presidents and vice presidents, while not above the law, are certainly entitled to greater deference than anyone else in American society. It also opened the door for executive immunity on the grounds of the separation of powers doctrine. Holding government officials accountable is a vital element of democracy. So, too, is allowing each branch of government to perform its official duties without unnecessary or inappropriate interference from the other branches or the public. In Cheney v. District Court, the Supreme Court hinted where, perhaps, the line between executive accountability and presidential prerogatives might be drawn in legal proceedings against the nation's only two elected executive branch officials: the president and the vice president. This article begins with an overview of the parameters that the Supreme Court has established regarding executive privilege and presidential immunity. (4) The article then proceeds to a discussion of how the Supreme Court recently addressed the current administration's efforts to avoid civil action against the vice president by asserting executive immunity based on the separation of powers doctrine. The article concludes with a brief discussion of the implications of the Court's ruling in Cheney v. District Court. Defining the Parameters of Executive Immunity In 1974, a unanimous Supreme Court recognized that presidents are entitled to executive privilege in certain instances that would shield the executive branch from the demands of the legislative and judicial branches of government. In the same case, however, the Court held that presidents could not escape the due process requirements of a criminal proceeding by invoking executive privilege, unless perhaps state secrets were at risk. …

Four models of due process

Human rights watchdogs inform us that extrajudicial executions continue to be used by many states to exercise control over their citizens.1 Agents of the state are sent to apprehend political enemies, who are dealt with brutally and sometimes tortured before being executed. No trial is held, no court passes judgment, and no law authorizes the execution. In these cases, the rule of law has run amok. Extrajudicial killings do not conform even to the narrowest, formal definition of rule of law, which insists only that state action find some authorization in law duly enacted.2 What is absent in these cases (from a legal perspective), and what excludes them from any claim to membership in a constitutional order, is even the barest requirement of due process. A constitutional due process guarantee defines and limits the state’s ability to deprive a person of life or liberty and ensures that any state-ordered execution or detention is duly authorized by law. The constitutions of most modern states include some form of due process guarantee. What is surprising, however, is the extent to which the highest courts of these states differ in their understanding of the minimum requirements of due process. A survey of the constitutional jurisprudence of Singapore,

The New General Common Law: The Past as Future

This 2004 paper continues to work out the body of thought eventually more fully realized in my A General Theory of Governance (Wm & Mary L. Rev. 2013). An authorized draft of the 2013 paper is now also available on SSRN, replacing a poor and heavily cut transcription. This earlier work was written in preparation for an AALS section talk. It argues that Erie is better understood as a specific example of a more general underlying theory. By 2004 the need for better theory had become pressing, given late revisionist scholarship urging a return to pre-Erie understandings. The ironies of the revisionist position are discussed and understood as an attack on American legal positivism. Erie’s power rationale is stated in more general terms, and Erie is understood as a requirement of due process.

The Limits of Virtue Jurisprudence

In response to Lawrence Solum's advocacy of a ‘virtue–centred theory of judging’, I argue that there is indeed important work to be done in identifying and characterising those qualities of character that constitute judicial virtues – those qualities that a person needs if she is to judge well (though I criticise Solum's account of one of the five pairs of judicial vices and virtues that he identifies – avarice and temperance). However, Solum's more ambitious claims – that a judge's vice necessarily corrupts her decisions, and that in at least some contexts we must define a legally correct decision as one that would be reached by a virtuous judge – should be rejected: we can undermine the former by attending to the requirements of due process, and the latter by attending to the ways in which a judge would try to justify her decision.

David versus Goliath: The state against thedoctor-administrative liability

Dental practice is subject to regulation by many agencies. The most formidableregulatory body for many practitioners is their State Licensing Board whose charge is protecting the well-being of the public. Because of the great power differential between the practitioner and the regulatory body, coupled with the limited due process requirements afforded the practitioner, it is important to know your board's policies and procedures and to respond to board inquiries appropriately. Practitioners would be wise to obtain appropriate legal counsel when responding to inquiries by most regulatory bodies and especially to inquiries made by their State Licensing Board. The objective of this article is to provide a general overview of the regulatory process and raise issues that you, as a health professional, must consider when confronted by an inquiry from a regulatory agency affecting the practice of dentistry. Although the major focus will be on a State Licensing Board, the general principles are applicable to most regulatory bodies.

AMA Wrong on Capital Punishment

Back to table of contents Previous article Next article ViewpointsFull AccessAMA Wrong on Capital PunishmentAbraham L. Halpern, M.D.Abraham L. HalpernSearch for more papers by this author, M.D.Published Online:17 Aug 2001https://doi.org/10.1176/pn.36.16.0025At its annual meeting in June the American Medical Association (AMA) rejected a resolution submitted by the Medical Society of the State of New York calling for a moratorium on capital punishment in the United States. (The resolution followed to the letter the one adopted last year by APA.)Instead, on the recommendation of the Reference Committee on Constitution and Bylaws, the AMA House of Delegates passed the following resolution: “Resolved, that our American Medical Association does not take a position on capital punishment, and be it further resolved that our American Medical Association urges appropriate legislative and legal authorities to continue to implement changes in the system of administration of capital punishment, if used at all, and to promote its fair and impartial administration in accordance with basic requirements of due process.”The Reference Committee alluded to “the AMA’s long-standing tradition to remain neutral on matters that are considered to be nonmedical but issues of society at large and that are highly divisive, such as capital punishment.”At the same time, it strongly endorsed the AMA’s policy position, in accord with its Code of Medical Ethics, “that physicians, as professionals who are dedicated to the preservation of life in the face of disease and illness and to the overall health and welfare of patients, cannot simply disregard the public health implications of wrongly convicting or executing innocent individuals,” and that physician participation in executions is prohibited.“Participation,” according to the AMA, includes not only the injection of a lethal substance, but also the prescribing or administering of tranquilizers and other psychotropic agents and medications that are part of the execution procedure, monitoring vital signs on site or remotely (including monitoring electrocardiograms), attending or observing an execution as a physician, and, in fact, even pronouncing death. The fact is that physicians do participate in one way or another, and these ethical violations have never resulted in disciplinary action by medical ethics committees. The problem is that many American doctors feel under pressure from state and federal laws and politicians to break their medical ethical commitments, and they feel a strong conflicting duty to their country’s laws. Few physicians are strong enough to participate in civil disobedience if that is what it would take to ensure that doctors no longer participate in the killing of people.The AMA thus has failed to recognize that its high-sounding words constitute mere lip service and that nothing less than an immediate moratorium on, and eventual abolition of, capital punishment can end the unethical participation by physicians in executions. ▪Dr. Halpern is a forensic psychiatrist in Mamaroneck, N.Y., and a member of the APA Committee on Misuse and Abuse of Psychiatry and Psychiatrists. ISSUES NewArchived

Constitutionalising the Role of the Judge: Scotland and the New Order

The extensive process of constitutional reform which is presently being undergone in the UK will fundamentally alter the way in which the body politic is thought about and talked about, leading in time to a new constitutionalism. In the course of this development a more central role is promised for the courts as judges are called upon to interpret and develop these changes. In addition, judges will be required to reconsider their own part in this process and to assess the legitimacy of the courts as presently constituted to meet these new challenges. In the past two years these developments have been most keenly felt in Scotland with the establishment of devolved government. This article will examine some of the early cases involving devolution issues in Scotland which have already impacted on the judicial role in two main respects. The first involves the task of judicial self definition, whereby judges evaluate the extent to which they themselves satisfy the requirements of due process in terms of two related matters: judicial impartiality and judicial independence. The second element of the judicial role which has been called into question is concerned not so much with procedural fairness but more with the substantive aspects of constitutional adjudication: in other words, with how judges confront the task of balancing the competing interests between individual and state and between centre and devolved unit which emerge from the new constitutional arrangements. The article will conclude by considering the extent to which changes in the self-definitional or due process elements of the judicial role connect to questions about the substantive role the courts ought to play in modelling and refining constitutional change itself.

The Critical Role of Advertising Media Planning in Federal Rule 23 Class Action Notice

Federal judges frequently must use mass media advertising to provide legal notice in class actions to meet requirements of court rules and constitutional due process. Unlike most marketing situations, in which relatively low but sustained target audience coverage by advertising can help support long-term sales and profits, court rules and constitutional due process demand high class coverage within a relatively short time frame, often spanning 30 to 90 days. Yet judges and attorneys typically lack the expertise to determine the number of class members who are exposed to and read a mass media notice, and case law and official judicial guidelines provide minimal and thus inadequate information. The use of mass media notice without sufficient analyses of likely notice coverage among class members can jeopardize the rights of class members and the legal integrity of the proceedings. Therefore, courts should demand the use of state-of-the-art media planning procedures, as demonstrated in this study, to forecast due process performance of alternative notice plans.

Emergency psychiatry: physical and chemical restraint in the psychiatric emergency service.

In recent years we have witnessed a markedly increased sensitivity to the potential for abuse of the socalled police powers of physicians. The criteria for involuntary admission have shifted from a treatment model to a dangerousness model, while the philosophical shift toward treatment in the least restrictive setting has been accelerated by hard economic reality. Between 1970 and 1994, the number of episodes of psychiatric care more than doubled, while the number of inpatient beds was cut by more than half (1). Payment for psychiatric hospital care has also become entwined with dangerousness. Lack of access may now be more of a rights issue than is deprivation of liberty. Consequently, the concentration of aggressive patients in the hospital has risen (2), and hospitals have become increasingly dangerous places. Concern has also heightened about violence committed by mentally ill persons in the community. Emergency services are an increasingly important component in a process with very serious consequences for the consumer and the community. In this complex situation where emergency mental health professionals are asked to weigh a number of clinical, legal, and economic issues, debate now arises about the use of physical and chemical restraint or seclusion. Although restraint may well be justifiable in many instances in the psychiatric emergency service, its ultimate value remains unclear. In an extensive review of the literature, Fisher (3) underscored the utility and clinical efficacy of restraint and seclusion in maintaining patient and staff safety in a variety of psychiatric treatment settings. However, that review and others also convincingly point to deleterious effects of restraint and seclusion on patients, who perceive them to be coercive and traumatic (4,5). Early scrutiny of use of restraint in

Achieving Legal Viability in Personnel Evaluations

Legal viability of an evaluation means that the evaluator can successfully address pertinent legal issues and avoid debilitating legal difficulties in conducting an ethical personnel evaluation and applying its results. While the 1988 Personnel Evaluation Standards contain no specific standard on legal viability, following the document’s twenty-one standards substantially aids evaluators to avoid legal difficulties. Nevertheless, meeting legal viability requirements is becoming increasingly complex and difficult in the face of the expanding role of personnel evaluations in high-stake decisions, including initial and advanced certification, sanctions and rewards, and terminations. Evaluators increasingly need sound, definitive guidance to meet procedural and substantive due process requirements and, in general, to keep their evaluations legally defensible. Eight years of experience in applying the 1988 Standards provides a foundation for developing a specific legal viability standard. This article argues for the inclusion of such a standard in the next edition of The Personnel Evaluation Standards. A prototype standard is presented to help the Joint Committee and its constituents deliberate on this matter.

How an anesthesiologist can use the ethics consultation service.

How an anesthesiologist can use the ethics consultation service.

Disputes Between Medical Supervisors and Trainees

THE RELATIONSHIP between medical students, resident physicians, and their supervisors is major factor determining the quality of medical education. For this relationship to be most conducive to learning, medical supervisors and trainees must communicate openly, share clearly defined conceptions of their respective roles in patient care and within the larger teacher-learner relationship, 1 and interact with each other and with patients in a climate of trust and concern.2 Fostering such relationship is an important goal of medical education. Unfortunately, evidence suggests that too often this idealistic model is not realized in practice. 3-11 When disputes arise between medical students, resident physicians, and supervising physicians, they often can be resolved through open and honest communication and informal negotiation. 12 When disputes cannot be resolved by the individual parties, resolution may require recourse to formal mechanisms that follow the requirements of due process. Due process for fair resolution of disputes between medical students,

The state actor doctrine and the NCAA: The NCAA is off the court

The National Collegiate Athletic Association, founded in 1905, has without doubt been the most dominant voice in the governance of intercollegiate athletics. Nonetheless, there have been challenges to the scope and power of the decisions of the NCAA, specifically decisions of its enforcement arms. A major question addressed by the Supreme Court evaluates claims that the NCAA is not a state actor and hence its decisions do not need to comport explicitly to due process requirements.

Judicial Views of Parole Decision Processes

In today's era of judicial decision-making guidelines and determinate sentencing systems, the future prospects for parole at the federal and state levels are increasingly unclear. The Supreme Court, in Greenholtz v. North Carolina (1979) and Board of Pardons v. Allen (1987) has offered a view of parole decision-making that emphasizes board members' projections concerning the societal risk posed by any given parolee. However, numerous empirical research studies have documented the importance of offense severity evaluations and other retributive judgements that are often negatively correlated with risk assessment. This article presents a way to integrate various conceptions of parole according to the broader sentencing framework within which board members operate. Implications for due process requirements at parole hearings and guidelines reform efforts are also discussed.

Federal Categorical Grants and Due Process Requirements: A Brief Examination of the Older Americans Act

With the pending 1991 reauthorization of the Older Americans Act, this article compares the due process requirements found in federal government-sponsored entitlement programs and those found in the Older Americans Act of 1965, as amended. Interestingly, the analysis notes a complete lack of individual rights protection in the Older Americans Act, a piece of landmark legislationfor the elderly. The article raises the question of whether there are "rights" protected under the due process interpretations in categorical grant programs where individual interests are denied for nonbudgetary reasons and suggests a role for state units on aging for protecting any such rights.

Demographic variables in medical school admission

Admission committees report that demographic variables, although accurate, reliable, and easily obtained from applicants to medical schools, are only moderately important in their decision making. This may be because the committees are concerned about the validity and legality of using such data as admissions criteria. This essay discusses the research on the validity of demographic variables and the recommendations for their legal use in selecting students for medical school. The relationships of age, gender, size of hometown, parental education, parental occupation, parental income, and marital status to medical school outcomes of preclinical performances, clinical performance, attrition, specialty choice, and practice location are summarized. [Race or ethnic group is discussed in a separate essay in this issue.] Although the authors focus on the predictive value of demographic variables, these variables play a more important role as the moderator variables for other predictors of medical school outcomes. The full value of using demographic variables derives from data obtained in local validity studies. To comply with the equal-protection and due-process requirements, admission officers must assure that the use of demographic information in the admission process is explicit in bulletins given to applicants and is uniformly applied in the evaluation of all applicants.

The legal context for evaluating and dismissing medical students and residents.

Medical school faculty often cite the fear of litigation as a reason for their reluctance to offer candid evaluations of students' and residents' performances and to dismiss them when necessary. This article is written to reassure faculty that they have nothing to fear from the courts and that they should uphold high academic standards. Three legal issues of concern to faculty are addressed: What does fair and equitable treatment entail? What are the due process requirements for academic dismissals? Are negative performance evaluations libelous and defamatory? Recommendations are made to meet legal requirements and to promote academic excellence.