Some Thoughts on the Constitutionality of Good Samaritan Statutes

1982 ◽  
Vol 8 (1) ◽  
pp. 27-43
Author(s):  
Barry Sullivan
Keyword(s):  
Due Process ◽  
Common Law ◽  
Equal Protection ◽  
Good Samaritan ◽  
Federal Constitutional ◽  
Medical Emergencies ◽  
The Common ◽  
Substantive Due Process ◽  
Good Samaritan Laws

AbstractGood Samaritan laws provide legal immunity to persons who assist in medical emergencies. Because good Samaritan laws eliminate the common law right of victims to secure redress for their injuries, these statutes raise certain constitutional questions. The Article begins by examining the vulnerability of good Samaritan statutes to federal constitutional attack on substantive due process and equal protection grounds. It then considers the susceptibility of such laws to state constitutional attack on the same grounds. The Article concludes that while such statutes are not likely to violate federal substantive due process and equal protection provisions, they may be held unconstitutional on similar state grounds.

Implying a Federal Constitutional Right to Education

2019 ◽  
pp. 135-163
Author(s):  
Derek W. Black
Keyword(s):  
United States ◽  
Due Process ◽  
The United States ◽  
United States Constitution ◽  
Equal Protection ◽  
Right To Education ◽  
Federal Constitutional ◽  
Substantive Due Process ◽  
Constitutional Right

In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He begins by sorting those theories into their major doctrinal categories and subcategories and explaining their basic arguments, including substantive due process, equal protection, privileges and immunities, citizenship, and originalism. Black then critically evaluates those theories, examining both the positives and negatives of the leading theories. He concludes that while a number of theories are plausible, scholarly theories have tended toward originalism in recent years and are the most likely to be successful before the courts.

John Lilburne: a Revolutionary Interprets Statutes and Common Law Due Process

1983 ◽  
Vol 1 (2) ◽  
pp. 276-296 ◽  
Author(s):  
Diane Parkin-Speer
Keyword(s):  
Due Process ◽  
Common Law ◽  
Public Controversy ◽  
The People ◽  
Individual Judgment ◽  
History Of ◽  
The Common ◽  
Additional Support ◽  
Rump Parliament ◽  
Second Use

In the history of English law and the Puritan Revolution, the Levellers are generally considered opponents of the common law, who increasingly used natural law arguments in their revolutionary propaganda. John Lilburne, one of the foremost Leveller leaders, in the tract The Legall Fundamentall Liberties of the People of England published in June 1649 and at his trial for treason in October 1649 used the common law as presented in Sir Edward Coke's The Institutes of the Laws of England and his report of Dr. Bonham's Case, to support his attack on the Rump Parliament. This was only the second use of Dr. Bonham's Case in public controversy as opposed to in a private law matter. Lilburne's reliance on The Institutes and Dr. Bonham's Case also reveals how Coke's legal thought could be integrated into revolutionary thinking, i.e., the limitation of the powers of parliament, not just through judicial review, but through individual citizens' interpretation of statutory law and their individual judgment of the validity of laws. The tenet of radical Protestantism, the supremacy of individual judgment, finds expression in Lilburne's interpretation of statutes and his belief in the limited powers of Parliament. The idea that radical Protestantism led to democratic theory and shook the foundations of established institutions is given additional support by Lilburne's propaganda and defense of himself.

Sovereignty and Liberty in William Blackstone's Commentaries on the Laws of England

2010 ◽  
Vol 72 (2) ◽  
pp. 271-297 ◽  
Author(s):  
Howard L. Lubert
Keyword(s):  
Due Process ◽  
Political History ◽  
Common Law ◽  
Habeas Corpus ◽  
Political Liberty ◽  
Arbitrary Power ◽  
Parliamentary Sovereignty ◽  
Arbitrary Rule ◽  
Due Process Of Law ◽  
The Common

AbstractIn this reading of William Blackstone's Commentaries the jurist is neither a conservative promoter of arbitrary power nor a modern liberalizer of the common law. He is a proceduralist who emphasizes due process of law as the way to reconcile political liberty with parliamentary sovereignty. Blackstone's jurisprudence reflects a particular reading of political history, one that sees Parliament at the forefront of the protection of English liberties. While the legislature is capable of tyranny, it is in the king and the courts that historically he finds the greatest examples of arbitrary rule. And it has been the exercise of parliamentary sovereignty that has reinstated and guarded due process—in particular, habeas corpus—thereby preserving and facilitating public liberty.

scholarly journals The Argument for Same-Sex Marriage

2018 ◽  
Author(s):  
Nelson Tebbe ◽  
Deborah Widiss ◽  
Shannon Gilreath
Keyword(s):  
Due Process ◽  
Equal Access ◽  
Equal Protection ◽  
University Of Pennsylvania ◽  
Gay Identity ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Substantive Due Process ◽  
The Right ◽  
Made In

159 University of Pennsylvania Law Review PENNumbra 21 (2010)Professors Tebbe and Widiss revisit the arguments they made in "Equal Access and the Right to Marry" and emphasize their belief that distinguishing between different-sex marriage and same-sex marriage is inappropriate. They lament the sustained emphasis on the equal-protection and substantive-due-process challenges in the Perry litigation and suggest that an equal-access approach is more likely to be successful on appeal.Professor Shannon Gilreath questions some of the fundamental premises for same-sex marriage. He challenges proponents to truly reflect on "what there is to commend marriage to Gay people," and points to his own reversal on the question as evidence. Though he stands fully in opposition to critics of same-sex marriage who use the stance to veil attacks on equality generally, Gilreath argues that marriage can be seen as a further institutionalization of gays and lesbians that risks "assimilationist erasure of Gay identity." Gilreath concludes by noting that to the extent that marriage is assumed to be normatively good, the Tebbe-Widiss equal access approach to same-sex marriage recognition may be the most successful; still, he invites those on all sides of the debate to vigorously challenge that assumption.

The Expansion and Fragmentation of Minor Offense Justice

2016 ◽  
Vol 19 (3) ◽  
pp. 382-411 ◽  
Author(s):  
Dat T. Bui
Keyword(s):  
Due Process ◽  
Common Law ◽  
Civil Law ◽  
Fair Trial ◽  
Adversarial System ◽  
Serious Crime ◽  
Reverse Trend ◽  
Rapid Pace ◽  
The Common ◽  
The Ideal

This article claims that minor offense processes in the common law and the civil law, as examined through two prototypical exemplars of England and Vietnam, have been converging at a more rapid pace and in a reverse trend compared to the convergence in the mainstream, serious crime processes. Because of the notion of nonseriousness, a natural convergence between the two systems in minor offenses is more obvious and less challenging than the convergence in the process for serious crimes. It is commonplace that the goals of regulation, prevention, and efficiency have predominated over the ideal of adversarialism, even in an adversarial system like England’s. This natural convergence is accompanied by a due-process-evading justice, in which criminal fair trial rights could be disproportionately limited by ideas of triviality and the so-called noncriminal character. The article also suggests a convergence in the jurisprudential framework as minor offense justice reflects limitations on fair trial rights in dealing with less serious public wrongs.

Common Law and Constitutionalism in the Abortion Case

1993 ◽  
Vol 55 (3) ◽  
pp. 421-441 ◽  
Author(s):  
James R. Stoner
Keyword(s):  
Legal Status ◽  
Due Process ◽  
Common Law ◽  
The Other ◽  
Constitutional Interpretation ◽  
Planned Parenthood ◽  
The Common ◽  
The One ◽  
Abortion Case

The Supreme Court's 1992 abortion decision, Planned Parenthood v. Casey, an the Due Process liberty cases of which it is among the most recent, can be fully understood only by attention to the often-neglected common law dimension of American constitutionalism. The fracture on the Court in this line of cases follows a severing of two elements of common law adjudication: the rule of precedent, on the one hand, and the authority of tradition, on the other. The authors of the joint opinion in Casey craft a rationalized rule of precedent in the manner of the modern reinterpreters of the common law, such as Justices Holmes and Cardozo. The dissenters, by contrast, here and in related cases, seek to recover the legal status of tradition in constitutional interpretation.

scholarly journals A propósito de la oposición formal/material: cuatro aproximaciones interdisciplinares sobre un mismo tema = On the formal/substantive opposition: four interdisciplinary approaches on the same subject

2020 ◽  
pp. 83
Author(s):  
Oliver Roales Buján
Keyword(s):  
Artificial Intelligence ◽  
Political Theory ◽  
Due Process ◽  
Interdisciplinary Approaches ◽  
Modern Thought ◽  
Common Lines ◽  
The Common ◽  
Substantive Due Process ◽  
Interdisciplinary Study ◽  
Standardization Of Procedures

 Resumen : El pensamiento cientifista moderno que pretende obtener certezas mediante la búsqueda de afirmaciones indiscutibles sobre hechos irrefutables derivados de la protocolización y estandarización de procedimientos que nos alejen del debate sobre los valores e intereses particulares, ha olvidado que la formalización que requiere el diseño de todo procedimiento aplicable a casos concretos supone siempre la incorporación de finalidades relativas a valores e intereses. Este olvido, propio del pensamiento moderno, se ha visto acompañado de otra actitud: la hiperespecialización de las disciplinas, de manera que sus consecuencias y los debates sobre las mismas en una especie de constante reinvención de la rueda se han reproducido estérilmente. Mediante un estudio interdisciplinar que pone de manifiesto las líneas comunes en debates paradigmáticos en los campos del derecho, la retórica, la lingüística, la ciencia cognitiva y la inteligencia artificial simbólica, así como la teoría política, pretendemos poner de manifiesto la incapacidad de las teorías procesualistas de satisfacer esa aspiración de certeza y neutralidad absoluta propia de las sociedades postmetafísicas en sentido habermasiano.Palabras clave: Debido proceso, debido proceso sustantivo, inteligencia artificial simbólica, filosofía política, J.Rawls, J. Habermas, C. Mouffe. Abstract :The modern scientificist thought that seeks to obtain certainty through the search for indisputable statements about irrefutable facts derived from the protocolization and standardization of procedures that take us away from the debate on particular values and interests, has forgotten that the formalization required for the design of any procedure applicable to specific cases always involves the addition of purposes related to values and interests. This oversight, typical of modern thought, has been accompanied by another attitude: the hyperspecialization of the disciplines, so that its consequences and the debates about them in a kind of constant reinvention of the wheel have been reproduced sterilely. Through an interdisciplinary study that highlights the common lines in paradigmatic debates in the fields of law, rhetoric, linguistics, cognitive science and symbolic artificial intelligence, as well as political theory, we intend to emphasize the inability of processual theories to satisfy an aspiration of absolute neutrality typical of postmetaphysical societies in the Habermasian sense. Keywords: Due process, substantive due process, symbolic artificial intelligence, political philosophy, J. Rawls, J. Habermas, C. Mouffe.

The Conciliar Courts

2019 ◽  
pp. 126-134
Author(s):  
John Baker
Keyword(s):  
Due Process ◽  
Common Law ◽  
Habeas Corpus ◽  
Life And Death ◽  
The North ◽  
Magna Carta ◽  
The Common ◽  
The Law ◽  
Star Chamber

This chapter examines the courts associated with the king’s council and the residuary prerogative jurisdiction of the Crown. Such courts were not supposed to meddle with the law of property, or with matters of life and death, since they did not follow the ‘due process’ required by Magna Carta and its progeny, but they nevertheless developed extensive jurisdictions alongside the courts of law. Their procedure was close to that of the Chancery. The principal conciliar courts were the Star Chamber and the Court of Requests, at Westminster, but there were provincial counterparts in the Marches of Wales and in the North. The extraterritorial jurisdictions of the admiralty and the constable and marshal were similarly derived from the royal prerogative and operated outside the common law. The King’s Bench watched all these jurisdictions carefully and checked excesses by means of prohibition and habeas corpus.

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