Rights as Process

2016 ◽  
Author(s):  
Karen Orren
Keyword(s):  
Progressive Era ◽  
Federal Courts ◽  
Special Basis

This chapter focuses on the distance between rights as claims and rights in practice. To survey rights in the Progressive century, it proposes to define rights less as a thing and more as a process, to wit: “A right is a claim, made against a person or action of another, either a citizen or governmental officer, enforceable in a court of law.” Like other processes, a “right” has a beginning and an end. The beginning is the claim itself; the end, its anticipated enforcement. The chapter begins by briefly situating the Progressive era in a broader story of rights as defined above. It then discusses a handful of rights disputes in state and federal courts from the Progressive era forward, and the definition proposed is briefly applied to particular cases. The cases were not selected on any special basis; others would have served as well. They are discussed only to give the approach a trial run. The point is not to put things in boxes but to consider rights in a fresh way, both over this historical span and in general.

Nine The Fall of the Original Ninth Amendment and the Rise of New Deal Constitutionalism

2009 ◽  
Author(s):  
Lash Kurt T
Keyword(s):  
Progressive Era ◽  
New Deal ◽  
Federal Courts ◽  
Present Discussion ◽  
Ninth Amendment ◽  
The New Deal

This chapter begins with a fairly exhaustive account of the use of the Ninth Amendment in state and federal courts prior to the New Deal. There is nothing new here in terms of theory: one finds the same analysis of the Ninth Amendment already developed in prior chapters repeated over and over again in state and federal courts throughout the Progressive era. There is a purpose, however, to including this history. One of the most durable myths about the Ninth Amendment is that it attracted little attention prior to the modern Supreme Court's discovery of the Ninth in Griswold v. Connecticut. The present discussion puts this myth permanently to rest. The second half of the chapter helps explain how the myth arose in the first place.

Liberty, Protection, and Women's Work: Investigating the Boundaries between Public and Private

1996 ◽  
Vol 21 (04) ◽  
pp. 857-899
Author(s):  
Julie Novkov
Keyword(s):  
Progressive Era ◽  
Due Process ◽  
Federal Courts ◽  
Constitutional Theory ◽  
Women's Labor ◽  
Public And Private ◽  
Separate Spheres ◽  
Labor Legislation ◽  
And Gender ◽  
The Relationship

During the Progressive Era, the U. S. state and federal courts considered constitutional challenges to protective labor legislation. While courts often struck down generalized protective legislation, they frequently upheld such legislation for women. I explore the reasoning in the cases decided between 1897 and 1923, showing that the courts developed understandings of liberty for women that differed from those for men. In opposition to traditional separate spheres reasoning, I show that the courts viewed men's exercise of liberty as depending on their private capacities to be free, while women's labor was subject to public control due to state interest in their reproductive capacities. I suggest that constitutional theorists who are studying substantive due process should place more emphasis on courts'conceptions of the subjects of due process guarantees rather than considering solely the challenged statutes' restriction of liberty. I develop a dynamic and complex understanding of liberty to capture this aspect of the relationship between constitutional theory and gender.

Bench over Ballot: The Fight for Judicial Supremacy and the New Constitutional Politics, 1910–1916

2020 ◽  
pp. 1-22
Author(s):  
Logan Stagg Istre
Keyword(s):  
Progressive Era ◽  
Federal Courts ◽  
Turn Of The Century ◽  
Constitutional Politics ◽  
The Public ◽  
Public Square ◽  
Judicial Decisions ◽  
Judicial Supremacy ◽  
Definition Of ◽  
Political Battle

Abstract The nature of American constitutional politics was forever changed during the Progressive Era. In the nineteenth century, the process of constitutional interpretation was a vague and decentralized enterprise balanced between the courts and the public square. The meaning of the Constitution was decided as much at the polls or on the battlefield as in court opinions. This balance started to give way at the turn of the century as federal courts began asserting greater authority in the definition of constitutional bounds. “Bench over Ballot” illustrates how the assertion of judicial supremacy in the Progressive Era precipitated a fight that upended the traditional dynamic of American politics. Populist-progressives championed the people's ultimate right to correct judicial decisions while traditionalist-conservatives stood for judicial supremacy to ensure a “government of laws.” The outcome of the political battle in 1912 was a consensus between Wilsonian progressives and Taftian conservatives in favor of judicial supremacy that banished the notion of popular supremacy and transformed the nature of constitutional politics from a popular, decentralized process to a vicious battle over the personal composition of the bench—a phenomenon deeply familiar over a century later.

ON THE INTERACTION OF A VISCOELASTIC CYLINDRICAL PIPE WITH INNER UNIFORM COATING AND INSERTS WITH A COMPLEX PROFILE

2020 ◽  
Author(s):  
Kirill Kazakov
Keyword(s):  
Complex Shape ◽  
High Accuracy ◽  
Contact Stresses ◽  
Basis Functions ◽  
Complex Profile ◽  
Cylindrical Pipe ◽  
Interference Fit ◽  
Uniform Coating ◽  
Special Basis ◽  
Insert Region

This work is devoted to the formulation and construction of an analytical solution to the problem of contact between a cylindrical viscoelastic aging pipe with an internal thin coating and an insert having a complex shape placed inside the pipe with an interference fit. In practice, the presence of such coatings is required, for example, to protect the main structure from aggressive external or internal environments, for its electrical insulation, etc. The manufacturing process of the inner coating determines its possible heterogeneity (dependence of properties on coordinates). An insert placed inside a pipe can have a complex profile that has a rapidly changing function. Taking these features into account is important when analyzing the stress-strain state of pipes with an internal coating. Using an approach based on the use of special basis functions and the type of solution, a representation for the contact stresses in the pipe in the region of the rigid insert is obtained. This approach makes it possible to distinguish functions that describe the properties of the inner coating and the shape of the outer profile of the insert in the form of separate terms and factors in the expression for the contact stresses in the insert region. Therefore, in order to achieve high accuracy when carrying out calculations, it is sufficient to restrict ourselves to a relatively small number of terms

Appeals by the Prosecution

2018 ◽  
Author(s):  
Nancy J. King ◽  
Michael Heise
Keyword(s):  
Empirical Work ◽  
The United States ◽  
National Sample ◽  
Federal Courts ◽  
Court Of Appeals ◽  
High Courts ◽  
Extensive Information ◽  
State High Courts ◽  
State Prosecutors ◽  
Rate Of Success

Scholarly and public debates about criminal appeals have largely taken place in an empirical vacuum. This study builds on our prior empirical work exploring defense-initiated criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploiting data drawn from a recently released national sample of appeals by state prosecutors decided in 2010, as well as data from all appeals by federal prosecutors to the United States Court of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of non-capital, direct appeals by prosecutors, including extensive information on crime type, claims raised, type of defense representation, oral argument and opinion type, as well judicial selection, merits review, and relief. Findings include a rate of success for state prosecutor appeals about four times greater than that for defense appeals (roughly 40% of appeals filed compared to 10%). The likelihood of success for state prosecutor-appellants appeared unrelated to the type of crime, claim, or defense counsel, whether review was mandatory or discretionary, or whether the appellate bench was selected by election rather than appointment. State high courts, unlike intermediate courts, did not decide these appeals under conditions of drastic asymmetry. Of discretionary criminal appeals reviewed on the merits by state high courts, 41% were prosecutor appeals. In federal courts, prosecutors voluntarily dismissed more than half the appeals they filed, but were significantly less likely to withdraw appeals from judgments of acquittal and new trial orders after the verdict than to withdraw appeals challenging other orders. Among appeals decided on the merits, federal prosecutors were significantly more likely to lose when facing a federal defender as an adversary compared to a CJA panel attorney.

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