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The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights. This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written. To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.” [ABSTRACT FROM AUTHOR]

Conspiracy jurisdiction is the theory that a defendant may be subject to personal jurisdiction in the forum state based on actions taken in furtherance of a conspiracy. What makes conspiracy jurisdiction unique is that as long as the acts of a coconspirator were directed at the forum state, other members of the conspiracy may be subject to jurisdiction in the forum state, even if they otherwise lack their own direct contacts. While all personal jurisdiction issues are subject to the Due Process Clause, nowhere else is it so peculiarly implicated--and sometimes sidestepped--as when conspiracy forms the basis for personal jurisdiction. This still-developing gloss on specific jurisdiction has seen increasing but chaotic use in federal and state courts. As a result, and in contrast to the doctrine's increasing use in litigation, scholarship is extremely sparse. This Article is the first to offer a comprehensive look at conspiracy jurisdiction's provenance and the complex current state of the law, analyzing the doctrine's varied applications in light of recent Supreme Court authority. Our Article relies chiefly on Walden v. Fiore and Ford v. Montana, which influence but do not control the doctrine, to analyze the due process contours of conspiracy jurisdiction and how the doctrine can--and will--survive once the Supreme Court inevitably grants review to resolve an active and jagged circuit split. [ABSTRACT FROM AUTHOR]

It is well established that Congress wields plenary power over the admission of noncitizens at the border. But when the government removes noncitizens who have already entered the country, including those who did so without lawful admission, the boundaries of its power are less clear. The Supreme Court confronted this issue in Department of Homeland Security v. Thuraissigiam. There, the Court rejected an asylum seeker's attempt to challenge his removal proceedings under both the Suspension Clause and the Due Process Clause. While scholars have focused on the Suspension Clause holding, this Note focuses on the Due Process portion of the opinion, which held that Thuraissigiam had no procedural due process rights because he had made it only twentyfive yards inside the border. Beyond that core holding, the opinion also implied two additional principles: first, that whether a noncitizen facing removal can claim procedural due process rights may depend on the existence of "established connections" with the United States, and second, that those due process rights are contingent on lawful admission. This Note argues that lower courts should limit Thuraissigiam's holding to its facts and avoid giving legal force to those two principles, which were arguably dicta. Courts should not read Thuraissigiam as an invitation to subject noncitizens' constitutional rights to nebulous ties-based tests or to pin those rights to the ever-changing statutes and regulations that govern admission. Instead, courts should affirm the longstanding principle that all noncitizens who have successfully entered the United States enjoy procedural due process rights in their removal proceedings, regardless of whether they obtained lawful admission. In addition to preserving the fundamental constitutional rights of noncitizens already within our borders, this position reconciles Thuraissigiam with Supreme Court precedent, which has generally recognized that those noncitizens are entitled to procedural due process rights with respect to their removal. [ABSTRACT FROM AUTHOR]

This Article challenges the conventional assumption that the Constitution protects only biological parent-child relationships and makes an affirmative case for constitutional protection for nonbiological parents. Family law in a growing number of states legally recognizes nonbiological parents in a range of families--including nonmarital families, families headed by same-sex couples, and families formed through assisted reproduction. But in some states, nonbiological parents who have not adopted are treated as legal strangers to their children. When these parents turn to the Constitution to assert a liberty interest in their parent-child relationship, they find no relief. Courts conclude that only biological parents possess a right to parental recognition protected by the Due Process Clause. This biological understanding of constitutional parenthood often rests on a reading of Supreme Court precedents from the 1970s and 1980s involving the rights of unmarried fathers and the status of foster parents. This Article revisits those precedents--both to show that they present a more complicated approach to parenthood than conventionally assumed and to make clear the ways in which they are in tension with more recent constitutional commitments. Rather than elaborate a biological approach to parenthood, the Court's decisions on unmarried fathers and foster parents view parenthood as a social practice. Even as these precedents provide useful insights about parenthood's social dimensions, they are outdated. Decided decades ago, these decisions condone forms of inequality that now appear constitutionally suspect. Since they were decided, legal understandings of the family have shifted significantly. The Court itself has contributed to the changing legal landscape through its decisions on the constitutional rights of same-sex couples--who ordinarily include nonbiological parents. [ABSTRACT FROM AUTHOR]

Anti-abuse doctrines in tax law have traditionally been formulated as multifactor tests that weigh the facts of the taxpayer's case but ignore the tax statute at issue. This approach has proven problematic: Some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual judicial inventions. These challenges undermine important barriers against abusive tax schemes. This Article argues that anti-abuse doctrines should be considered substantive canons of construction: interpretive presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines' application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive. Although many scholars have studied substantive canons and anti-abuse doctrines separately, this Article connects the two. It also catalogs the substantive tax canons based on existing case law, serving as a resource for future academics, practitioners, and judges. [ABSTRACT FROM AUTHOR]

Medicare fraud costs this country billions of dollars a year and contributes to an ever-expanding debt. Conservatives want to cut spending on Medicare significantly, while liberals champion expanding Medicare. Finding common legislative ground between these positions has proven impossible. As a result, courts play an important role in pushing Medicare providers to stop defrauding the government. Unfortunately, up to the present, courts have rejected statistical methods of proof that could significantly reduce the cost of bringing suits against Medicare fraudsters. Judges who have ruled on the issue cite due process concerns with extrapolating that a care provider likely defrauded the government in a large number of cases from a much smaller subset of purportedly fraudulent claims. This Note provides guidance to courts, arguing that sampling is appropriate in cases against a single defendant with a large number of claims at issue where the alleged fraud is systematic and the variability between claims is relatively limited. Specifically, this Note deals with the realities of estimating a model that seeks to organize claims into categories of liability or nonliability. [ABSTRACT FROM AUTHOR]

The article discusses the federal right to education in state and national citizenship in the U.S. as presented by Derek Black. Topics discussed include the analysis by scholars like Erwin Chemerinsky and Cass Sunstein on Black's theory using doctrines like substantive due process and equal protection, the Fourteenth Amendment of the constitution, and comment from former professor Goodwin Liu on the issue.

False confessions happen. At least 245 people have been exonerated from convictions in cases featuring confessions that were simply not true. Confessions offer a narrative that allows law enforcement, and society in general, to neatly resolve cases with apparent clarity and closure. And yet the pressures officers place on suspects to provide that closure weigh disproportionately on the vulnerable, including individuals with intellectual disabilities. These individuals are disadvantaged at every step of the custodial interrogation, and they face heightened risks of falsely confessing. Moreover, the principal judicial safeguards against false confessions--assessing a suspect's Miranda waiver and determining whether a confession was voluntarily given within the bounds of the Fourteenth Amendment's Due Process Clause--provide little protection for the innocent with intellectual disabilities. Few pieces of scholarship focus specifically on the heightened risks faced by individuals with intellectual disabilities throughout the process of police interrogation. This Note describes the various ways these individuals are disadvantaged. And it offers an additional data point illustrating the vulnerability of people with intellectual disabilities. This Note analyzes the 245 individuals (as of June 2, 2017) on the National Registry of Exonerations who have falsely confessed. Over one-quarter of them display indicia of intellectual disability. This percentage dwarfs the prevalence of people with intellectual disabilities in the general population and even exceeds most estimates of the proportion of the prison population suffering from intellectual disabilities. This Note concludes with several policy and doctrinal suggestions to better protect individuals with intellectual disabilities from the risks of false confession. [ABSTRACT FROM AUTHOR]

The introduction of extraneous information into the jury room has been recognized by courts as posing a potential threat to the due process rights of litigants and the Sixth Amendment rights of criminal defendants. At the same time, however, courts encourage jurors to use their prior experience and common sense as a means of analyzing the evidence at trial. Expert jurors occupy a space at the intersection of these two poles. By virtue of their own personal expertise, they pose a distinct risk of bringing in the sort of information other jurors are prohibited from seeking out by simply using personal experience to analyze the evidence and theories at trial. Given the modern-day jury, which unlike its historical counterpart is limited to the evidence at trial, how should courts handle the risks expert jurors pose? This Note examines that question. It first situates the jury in its historical context and discusses the problem of extraneous information. It then details the present case law on when a juror’s use of personal expertise introduces extraneous information. Finally, it suggests alternative solutions to the problem expert jurors can pose. [ABSTRACT FROM AUTHOR]

An essay is presented on the proposed creation of an International Court of Civil Justice, focusing on the efforts to protect the legal rights of victims of cross-border mass torts de facto (not de jure) who have no court to turn to in order to pursue legal actions against American multinational corporations that are responsible for various disasters. Justice, fairness, and lawsuits related to the 2010 BP Deepwater Horizon oil rig fire and spill are examined. U.S. due process is assessed.

An essay is presented on the U.S. Supreme Court's determination in the 1963 case Brady v. Maryland that due process of law in America requires prosecutors to disclose favorable evidence to criminal defendants, focusing on a call for the use of a Brady colloquy during which a judge would question a prosecutor on the record about his or her criminal justice-related disclosure obligations. Exculpatory evidence, the legal concept of good faith, and various American law reform efforts are examined.

Judicial federalism scholarship has concentrated on the interplay between the U.S. Supreme Court and state supreme courts for incorporated rights, where the former sets the floor for rights in the states. But little has been said about judicial federalism and the unincorporated rights, where states are unrestricted in their freedom to define the rights. The Seventh Amendment presents a one-of-a-kind experiment in judicial federalism, as the only federal constitutional right that is duplicated in the great majority of state constitutions and has generated an appreciable body of case law. In this Note, I analyze the evolution of state court treatment of the intertwined-issues problem, both before Beacon Theatres, Inc. v. Westover announced the federal rule, and today. Surprisingly, I reveal first, a genuine split of authority in the states between the Beacon Theatres rule and a narrower rule, and second, that the states had nearly uniformly agreed to the narrower rule before Beacon Theatres--a fact not discussed by the Beacon Theatres Court or litigants. The Beacon Theatres decision has transformed the doctrinal landscape over more than fifty years; many state courts have uprooted their state rules and planted the federal rule in its place. This Note concludes that state supreme courts need a distinct approach for unincorporated rights, such as the Seventh Amendment, to serve judicial federalism norms. [ABSTRACT FROM AUTHOR]

The neuroscience revolution poses profound challenges to current self-incrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self-Incrimination Clause of the Fifth Amendment, no person shall be compelled to "prove a charge [from] his own mouth," but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to reframe the debate. It demonstrates through modern applications from neuroscience the need to redefine the taxonomy of evidence subject to the privilege against self-incrimination. Evidence can arise from the identifying characteristics inherent to individuals; it can arise automatically, without conscious processing; it can arise through memorialized photographs, papers, and memories; or it can arise through responses uttered silently or aloud This spectrum--identifying, automatic, memorialized, and uttered--is more nuanced and more precise than the traditional testimonial/physical dichotomy, and gives descriptive power to the rationale underpinning the privilege against self-incrimination. Neurological evidence, like more traditional evidence, may be located on this spectrum, and thus doctrinal riddles of self-incrimination, both modern and ancient, may be solved. [ABSTRACT FROM AUTHOR]

This Article explores the relationship of the U.S. Constitution to the costs of government decision making. Constitutional law clearly can escalate these costs, as when the Due Process Clauses are read to mandate additional procedure not otherwise favored by decisionmakers. This much is understood. But the Constitution and its doctrine sometimes put downward pressure on decision costs. We lack a systematic investigation of when this is, and should be, true. The Article makes three general claims: (1) The entire Constitution tends to reduce decision costs insofar as it is a focal point for confining disputes, and empirical work suggests that adherence to the document might not accomplish much else. (2) However, individual components of the text and its doctrine often increase rather than decrease the costs of government decision making. (3) This situation is not ideal. An intelligently crafted federal constitutional law of "undue process" seems just as attractive as "due process," and some courts have experimented with the former. Neither process theory nor implementation problems separate the two concepts, as long as courts are not tasked with optimizing government process. Yet the desirability of a generic undue process claim is tempered by the very conventions that allow the Constitution as a whole to reduce decision costs. Undue process claims therefore ought to be exceptional, even if occasionally potent, elements of federal constitutional practice. The most plausible occasions for successful objections are identified. [ABSTRACT FROM AUTHOR]

Examines the debate over U.S. participation in the International Criminal Court (ICC) as a case study in the political economy of antitreaty discourse. Description of the ICC and the range of arguments that U.S. officials could use against it; Exploration of the arguments with regard to the court's process deficiencies; Reason behind the staple role of the arguments in the antitreaty discourse targeting the ICC.