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Substantive Due Process and the Original Meaning of the Fourteenth Amendment\u27s Due Process Clause
No full textThis essay will have two main parts. First, I will present a brief account of the drafting and adoption of the Due Process Clause to indicate the purpose and general understanding of the measure. Second, I will undertake an originalist analysis of the prohibition’s text to identify how its various parts—“nor shall any state deprive,” “any person,” of “life, liberty, property,” “without due process,” and “of law”—incorporate limitations on state legislative powers as to substantive and procedural matters. This essay’s tentative conclusion is that the Fourteenth Amendment’s Due Process Clause, according to its original meaning, does not incorporate any general rule governing substantive law. Nonetheless, by prohibiting state deprivations of life, liberty, and property, in the absence of lawful process, the measure does incorporate major restraints on the government on behalf of human rights
John Makdisi on The Intercultural Origins of the Common Law
No full textIn this Essay, I pay homage to John Makdisi on the occasion of his retirement. Since joining the St. Thomas Law faculty in 2011, I have esteemed him as one of the law school\u27s senior Property Law professors, yet-truth be told-at times also felt intimidated by him for his deep knowledge of the subject, particularly present estates and future interests, coupled with his serious demeanor, penetrating gaze, and cogent arguments at faculty meetings. 4 Especially during tenuretrack faculty reviews of my teaching, I worried that my relative inexperience in teaching the subject might cause me to commit an embarrassing error. With time, I learned that my apprehension was unfounded: although he expects excellence of himself, and therefore of others, John Makdisi is generous. As a teacher, he happily and tirelessly engages with his students when they visit his office hours and, as a colleague collaborating on a committee project in the year of his retirement, I found him consistently gracious and myself wishing that I had sought his mentorship earlier. Beyond such confessions, to contribute substantively to this special issue in honor of John and June Mary Makdisi, I will: (1) review several of John Makdisi\u27s arguments for how Islamic law influenced the creation and early evolution of the English common law; (2) ask why today\u27s Property Law casebooks elide his provocative yet persuasive arguments; and (3) argue that today\u27s Property Law professors should draw upon Makdisi\u27s scholarship on the origins of the common law in order to educate ourselves and highlight for our students the intercambio de culturas (intercultural exchange) that generated the English common law. Critically, emphasizing this legal history allows us to counter the clash of civilizations argument that has become regnant, ideological, and pernicious in the post-9/11 era of renewed anti-Muslim animus in the United States and abroad.
Toward Regulatory Mass Redress Schemes - Mass Redress in Financial Mis-Selling Scandals in the U.S., the U.K. and South Korea
No full textThis paper analyzes case studies from three nations that have recently used regulatory redress schemes to address widespread financial mis-selling scandals. In response to the inappropriate sales of credit card add-on products in the United States, the Consumer Financial Protection Bureau (CFPB) ordered financial companies to repay consumers whom these deceptive practices harmed. In the United Kingdom, the Financial Conduct Authority (FCA) and the Financial Ombudsman Service (FOS) ordered and managed consumer redress schemes that reimbursed millions of consumers who were mis-sold payment protection insurance (PPI) policies. In South Korea, the Financial Supervisory Service (FSS) advised financial companies to repay consumers for mis-sold credit card add-on products. The regulatory case studies cited in this article all involve harm to consumers caused by financial products. Regulatory mass redress works exceptionally well in the financial services sector because, unlike any other industry, it is a heavily regulated industry that offers regulators unique opportunities to access information and intervene at an early stage. The wide variety of enforcement mechanisms available to financial regulators creates incentives for the regulated entities to offer redress voluntarily and promptly. Further, as the consumer harm that financial products cause can easily be widespread, inconspicuous, and of low-value in individual cases, policymakers have come to consider regulatory mass redress as an attractive alternative to traditional class action litigation. Regulatory redress schemes operate in the broader milieu of each nation\u27s unique civil justice system and financial regulatory architecture. In the U.S. and the U.K., financial authorities promulgate, impose, and operate explicit legal mandates, guidelines, and procedures regarding consumer restitution or redress schemes. In contrast, the South Korean case lacks a legal basis for its consumer redress scheme and is much more informal. What these regulatory redress schemes have in common is that they can be very accessible, effective, and efficient, particularly in low-value but widespread financial mis-selling cases. However, regulatory redress schemes are not without drawbacks. Critics argue that consent replaces the rule of law, and administrative actions replace due process. They also raise the concern that the new processes emphasize efficiency over the right to a fair trial by an independent judiciary that will consider the evidence and apply the law. Thus, designing an optimal regulatory redress scheme becomes a balancing act between efficiency gains and due process. This paper reflects on the implications of these three case studies and proposes various factors that legislators should consider when designing regulatory redress schemes
Global Regulation of Corporate Conduct: Effective Pursuit of A Slave-Free Supply Chain
No full textAttractive as they seem, free trade and capital flows have also brought about major negative impacts. Achieving socially sustainable globalization and maintaining a global economic order that respects human dignity remains a matter of concern. Human-by-human exploitation in the form of modern slavery is deeply entrenched in many businesses, large and small. In recent years, there has been a proliferation of efforts towards building a supply chain that would be free from questionable practices and abuses of the human rights of workers. Efforts have been made to advocate for a human rights-based code of conduct for businesses, for a meaningful corporate social responsibility, and for ethical consumerism. Existing law, policy, and social activism have made some strides toward committing businesses to trace their supply and to cutting ties with contractors accused of using forced labor. Still, the law is unsettled as it regards corporate liability. Globalization, the complexities of outsourcing, extended supply chains and their mostly unregulated nature have exacerbated trafficking in humans. This extraordinary problem, as it persists, calls for extraordinary measures. A business as usual approach has not solved the problem. It is time for nation states to step up their regulatory approach regarding businesses. Individually and as a community, nation states need to create a rule-based system for corporations forcing compliance, a system that would be workable and effective
Differing Schools of Thought: Changing Perceptions of Oral Argument
No full textIn this paper I will examine the changing perceptions of oral argument, as well as examine and review the data provided by the Office of State Courts Administrator ( OSCA ) for Florida\u27s appellate courts. Their data summarized the dispositions of all appeals in Florida from 2011 to 2015. The dispositions are separated between those cases disposed by oral argument and those cases disposed without oral argument. From this research, we can observe whether this data comports with the changing perceptions of oral argument. If there is a divergence in views, one may attempt to determine why. Is it rooted in the age old views as represented by Justice Thomas and the late Justice Scalia? Are some judges just perceiving it as a waste of time and a drain on the scarce resource of time, as opposed to the traditional view of oral argument as the ultimate legal proving ground? Finally, why should we care about the changing perceptions of oral argument? It matters to judges and practitioners because they need to know if the perceptions confirm or contradict their own perceptions of oral argument
Florida\u27s Direct File Statute: A Prosecutor\u27s Playground
No full textThis Comment will examine the advantages and disadvantages of direct file statutes, focusing primarily on Florida. Part II of this Comment analyzes the three different types of waiver-judicial, legislative, and prosecutorial-and discusses Florida\u27s juvenile transfer laws, specifically Florida\u27s direct file statute. Part III discusses the issues stemming from Florida\u27s direct file statute, particularly that the statute is arbitrary, does not deter crime, increases recidivism, and goes against the Supreme Court finding that juveniles are different from adults. Lastly, Part IV proposes to eliminate discretionary prosecutorial direct file, and how the Florida Legislature can limit prosecutors\u27 discretionary power in the meantime
John the Theologian: Towards Integrating Law and Religion
No full textEvery dean leaves an impact on the law school they serve and its faculty. St. Thomas Law Dean Makdisi supported and encouraged Professor Siegfried Wiessner\u27s effort in creating an LL.M. program in Intercultural Human Rights. While others will laud his many accomplishments as dean in the J.D. program, his impact on the religious heritage and Catholic mission of St. Thomas Law was greatest in the LL.M. program
Law as a Means to Human Flourishing: Law, Morality, and Natural Law in Policy-Oriented Perspective
No full textIn what follows, I first introduce what I take to be the two foundational insights of Policy-Oriented Jurisprudence, to wit: that law is a means that should be defined and studied from the perspective of the political superior or sovereign as inherently a type of decision made in social context that is ideally someone\u27s creative and rational choice. Second, I introduce New Haven\u27s distinction between theories of law and theories about law as framing its assessment of alternative legal theories, including Natural Law. Third, I explore Lasswell\u27s and McDougal\u27s attitude toward Natural Law, as well as the sources from which they derived their understanding of the tradition. Fourth, I describe New Haven\u27s critical assessment of Natural Law. In doing so, I consider Lasswell\u27s and McDougal\u27s determination that Natural Law lacks the intellectual tasks necessary for a rational jurisprudence, as well as engage with some of the challenges posed by the latter to New Haven. Lastly, I offer some concluding observations on the most salient areas of agreement between the two Schools of jurisprudence
A Computational Analysis Of Oral Argument In The Supreme Court
No full textAs the most public component of the Supreme Court’s decision-making process, oral argument receives an out-sized share of attention in the popular media. Despite its prominence, however, the basic function and operation of oral argument as an institution remains poorly understood, as political scientists and legal scholars continue to debate even the most fundamental questions about its role.Past study of oral argument has tended to focus on discrete, quantifiable attributes of oral argument, such as the number of questions asked to each advocate, the party of the Justices’ appointing president, or the ideological implications of the case on appeal. Such studies allow broad generalizations about oral argument and judicial decision making: Justices tend to vote in accordance with their ideological preferences, and they tend to ask more questions when they are skeptical of a party’s position. But they tell us little about the actual goings on at oral argument—the running dialog between Justice and advocate that is the heart of the institution.This Article fills that void, using machine learning techniques to, for the first time, construct predictive models of judicial decision making based not on oral argument’s superficial features or on factors external to oral argument, such as where the case falls on a liberal-conservative spectrum, but on the actual content of the oral argument itself—the Justices’ questions to each side. The resultant models offer an important new window into aspects of oral argument that have long resisted empirical study, including the Justices’ individual questioning styles, how each expresses skepticism, and which of the Justices’ questions are most central to oral argument dialog
Divide and Conquer: How the Democrats Can Maintain Control of the Ninth Circuit
No full textDue to its large size, the Ninth Circuit employs a limited en banc review, where only eleven of its active judges sit en banc, consisting of the chief judge and ten other active judges who are randomly selected. Accordingly, limited en banc allows for “minority rule” in a subset of cases, such as when the random draw results in six or more judges holding minority views for that particular case. Although a few Ninth Circuit judges have criticized the limited en banc procedure because of the possibility of minority decisions, most of the judges on the Ninth Circuit have apparently accepted the limited en banc procedure on the basis that there is no perceived realistic alternative. This Essay challenges this consensus and presents a mechanism to fix the Ninth Circuit’s representativeness problem while retaining the efficiency of the current procedure. Because the Trump Administration has significantly cut into the advantage Democratic appointees have on the Ninth Circuit, this mechanism is needed for the Democratic appointees to maintain control of Ninth Circuit law