scholarly journals The Problem with Forgiving (But Not Entirely Forgetting) the Crimes of Our Nation’s Youth: Exploring the Third Circuit’s Unconstitutional Use of Nonjury Juvenile Adjudication in Armed Career Criminal Sentencing

2005 ◽  
Vol 66 (4) ◽  
Author(s):  
Stephen F. Donahue
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
The United States ◽  
Past Century ◽  
Criminal Proceedings ◽  
Social Compact ◽  
Procedural Due Process ◽  
Due Process Of Law ◽  
Lower Courts ◽  
The Individual

For better or for worse, our Constitution ensures that the basic rights of fair procedure are guaranteed to all American citizens, including those accused of crime, no matter how much society may disapprove of their actions. The United States Supreme Court has expressly provided that “[d]ue process of law is the primary and indispensable foundation of individual freedom” and effectively serves as the “basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.” Recognizing that the failure to observe fundamental procedural due process guarantees has historically resulted in substantial unfairness to criminal defendants, the Court has worked to establish heightened procedural safeguards in criminal proceedings over the latter half of the past century.6 In this sense, the Court has openly embraced the belief that “the progression of history, and especially the deepening realization of the substance and procedures that justice and the demands of human dignity require” has called for courts to “invest the command of ‘due process of law’ with increasingly greater substance.” Consequently, the Supreme Court has set a clear example that lower courts must move forward “with advancing the conception of human rights in according procedural as well as substantive rights to individuals accused of conflict with the criminal laws.”

scholarly journals A Historical Perspective on Administrative Jurisdiction in Latin America: Continental European Tradition versus U.S. Influence

2016 ◽  
Vol 5 (1) ◽  
pp. 241-289 ◽  
Author(s):  
Ricardo Perlingeiro
Keyword(s):  
Latin America ◽  
Latin American ◽  
Due Process ◽  
The United States ◽  
Procedural Due Process ◽  
European Tradition ◽  
Due Process Of Law ◽  
Administrative Jurisdiction ◽  
The 19Th Century ◽  
Latin American Countries

Abstract From the perspective of U.S. influence, this text analyses the history of administrative jurisdiction, starting from the 19th Century, in the 19 Latin American countries of Iberian origin (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela). The analysis includes the U.S. unified judicial system (generalized courts) and procedural due process of law to decisions by the administrative authorities, the fertile field of primary jurisdiction, which is in conflict with the Continental European tradition firmly established in Latin American administrative law. While setting out the contradictions of administrative jurisdiction in Latin American countries that result from importing rules without putting them in the proper context, the text seeks to identify trends and create perspective to build a model of administrative justice specific to Latin America, drawing on the accumulated experience of the United States and Continental Europe.

The United States Supreme Court, 1936–1946

1947 ◽  
Vol 41 (1) ◽  
pp. 1-11 ◽  
Author(s):  
Walter F. Dodd
Keyword(s):  
United States ◽  
Supreme Court ◽  
Due Process ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
General Welfare ◽  
Due Process Of Law ◽  
Governmental Power ◽  
National Power

In order to analyze the trend of the United States Supreme Court from the beginning of its 1936 term in October, 1936, to the end of the 1945 term in June, 1946, it is first necessary to state the situation at the beginning of this period.Before the pressure of our last great depression, the United States Supreme Court had found restrictions to exist upon the powers of the national government, and had found barriers against governmental power, both national and state. These barriers were found primarily in a small number of cases: Ribnik v. McBride, 277 U. S. 350 (1928), which restricted price regulation; Hammer v. Dagenhart, 247 U. S. 251 (1923), in which federal power was held not to extend to the shipment of child-made goods in interstate commerce; Adkins v. Children's Hospital, 261 U. S. 525 (1923), in which it was held that a statutory regulation of minimum wages for women was violative of due process of law; Adair v. United States, 208 U. S. 161 (1908) and Coppage v. Kansas, 236 U. S. 1 (1915), which sustained the so-called “yellow-dog” contract, and held that it was unconstitutional for either state or nation to forbid the employer's contracting that his employees should not belong to unions.These opinions have now been overruled or explicitly disregarded and the Court has expressed the further opinions that state powers in no way restrict the powers granted to the nation; and that the national power to spend for the “general welfare of the United States” is not limited by the direct grants of legislative power found in the Constitution.

Punishment Legalized: Protest Against Corporal Punishment in Schools

PEDIATRICS ◽  
1976 ◽  
Vol 57 (2) ◽  
pp. 293-293
Author(s):  
Hania W. Ris
Keyword(s):  
United States ◽  
Supreme Court ◽  
Corporal Punishment ◽  
School Children ◽  
Due Process ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
School Official

An unexpected and repressive decision affecting school-children was reached in October 1975 by the United States Supreme Court. It allows the states, if they so choose, to permit teachers to spank students as long as due process is maintained. This implies that other means for control of misbehavior have to be used first, that the student must be informed in advance about the nature of misbehavior which warrants spanking, and that another school official must be present at the time of spanking.

scholarly journals Le recouvrement de l'impôt et les droits de la personne

2005 ◽  
Vol 24 (3) ◽  
pp. 457-475
Author(s):  
Henri Brun
Keyword(s):  
Human Rights ◽  
Income Tax ◽  
Due Process ◽  
Tax Law ◽  
Canadian Charter ◽  
Section 8 ◽  
Procedural Due Process ◽  
Due Process Of Law ◽  
Income Tax Law ◽  
The Right

Those who like to pay tax are few. Accordingly, income tax is often described as a shame. Of course, the right to enjoyment of property is at stake in the matters of taxation. And the collection of taxation involves also other aspects of the right to substantive and procedural due process of law : right to privacy, to be heard, to unbiassed decision, to professional secrecy... This article contrasts these rights, as they are expressed in sections 5 to 9 and 23 of the Charte des droits et libertés de la personne of Québec and section 8 of the Canadian Charter of Rights and Freedom, with sections 13 to 16 and 38 and following of the Loi sur le ministère du revenu of Québec and sections 159, 231 and 232 of the Canadian Income Tax Act. It finds that it is the application of the income tax law, more than the law itself, that threatens human rights. It concludes that the main benefit of both Charters of rights is to provide a shelter from such unreasonnable application

ECHR decision to refuse to waive the immunity of a person under article 1 of the protocol no. 6: Individual interpretations of the essence and consequences

2021 ◽  
Vol 28 (3) ◽  
pp. 257-267
Author(s):  
Bohdan V. Shchur ◽  
Iryna V. Basysta
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Method Comparison ◽  
Scientific Basis ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
International Obligations ◽  
Grand Chamber ◽  
The Individual

In present-day Ukraine, there is no unanimous answer to the question of the essence and consequences of the ECHR decision to refuse to waive immunity under Article 1 of the Protocol No. 6 either in the national criminal procedural legislation, or in the theory of criminal procedure, or among judges, investigators, prosecutors. Therefore, the purpose of the present paper is to try to attempt to formulate individual approaches to address this issue. The relevance of the subject under study is conditioned upon its theoretical and practical components. The former is that there this area is heavily understudied, and judicial practice, among other things, requires a certain scientific basis to formulate individual positions in their unity. The dilemma proposed in the title of this study was also addressed by members of the Scientific Advisory Board of the Supreme Court, who were approached by judges of the Grand Chamber for scientific opinions, emphasising the urgency and necessity of feedback from practitioners. To formulate the individual approaches serving the purpose of this study, the authors employed such general and special research methods as dialectical, induction and deduction, Aristotelian, system-structural, sampling method, comparison, and legal forecasting. Notwithstanding the fact that the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6, adopted by its plenary session in accordance with Article 4 of the Protocol No. 6 to the General Agreement on Privileges and Immunities of the Council of Europe, is “procedural”, it was proven that the Grand Chamber of the Supreme Court has the authority to conduct proceedings on the application of such a person to review the judgment precisely in exceptional circumstances. It is emphasised that the ECHR decision should be considered as one that does not aim at the final assessment of criminal proceedings, so it cannot be equated with the decision of an international judicial institution, which would state Ukraine's violation of international obligations in court and the order of its execution will differ. The authors also address the fact that the consequences of the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6 are critical. After all, such a decision of the European Court of Human Rights is the “bell” for Ukraine, which, among other things, may hint at the probability that the Court will identify the facts of human rights violations

22. A Revolution by Due Process of Law?

2021 ◽  
pp. 613-648
Author(s):  
Ian Loveland
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Due Process ◽  
Final Part ◽  
Court Decisions ◽  
The European Union ◽  
Legal Basis ◽  
High Court ◽  
The Supreme Court ◽  
Due Process Of Law

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

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