...Due Process Clayton Cullins 01/04/12 CJS 220 Mr. Samuel P. Cervera Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person. Due process balances the power of law of the land and protects individual persons from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law. Due process has also been frequently interpreted as limiting laws and legal proceedings (see substantive due process), so that judges - instead of legislators - may define and guarantee fundamental fairness, justice, and liberty. This interpretation has proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions. This interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically. In the criminal justices, Due process can be in applied in court cases. In criminal prosecutions and civil cases are generally governed by explicit guarantees of procedural rights under the Bill of Rights. Most of these rights have been incorporated under the Fourteenth Amendment to the States. Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived...
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...Due Process Paper Due Process Paper Due process A New York State Supreme Court Justice traces the constitutional concept of due process to the English concept of "the law of the land" (W. McKechnie, 1914). Due process, is a judicial requirement stating that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual (Merriam-Webster). Due process of law is based on the idea that legal proceedings cannot interfere with life, liberty, or property unfairly. The Fifth and Fourteenth Amendments guarantee that one will be given notice of the proceedings and will have an opportunity to be heard prior to the seizure of life, liberty, or property.” Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land protecting individual persons from the state” (Wikipedia 2009). When a person gets harm by the government, the government has to follow the exact course of the law and if the government doesn’t follow, it will constitutes a due process violation that offends against the rule of law. Due process is traditionally divided into substantive and procedural categories. Substantive due process relates to general rights such as freedom of speech and privacy. Procedural due process relates to the right to an attorney, and other specifics associated with the procedures of legal proceedings...
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...to understand the basis of the majority opinion and whether the arguments of the dissenting opinions are valid. Specifically, David wants you to answer the following questions: • The majority opinion concludes that “the right to marry is fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses… couples of the same-sex may not be deprived of that right and liberty.” What are the chief criticisms that Chief Justice Roberts’ dissent makes of the conclusion that the right to marry is a fundamental right? • Do you agree with the majority or with Justice Roberts on whether the right to marry is a fundamental right, and why? (Definition of “marriage” is part of Robert’s analysis of whether the right to marry is a fundamental right and is also part of the majority opinion, so you have to get into what the word “marriage” means) • Justice Thomas’s dissent states his view that substantive due process is wrong. He also says that, even if were “defensible”, “the concept of ‘liberty’ [that the majority opinion] conjures up bears no resemblance to any plausible meaning of the word as it is used in the Due Process Clauses.” What is Justice Thomas’s view of the meaning of “liberty”...
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...Due Process Crystal Groff Strayer University Professor Freeman Abstract We all wonder what the words life, liberty, and property derived from. In this paper I will be explaining what due process is and how it relates to life, liberty, and property. I will also explain where due process came from and what 2 amendments relate to due process. Before we start though I would like you to know that due process is there to protect the defendant under proving guilty. Define due process and its origin? Due process refers to a set of established legal principles, derived from the Constitution, that seek to protect the rights if citizens. It is done to insure that the government treats all the individuals properly and does not abuse there power by acting against the citizens in an arbitrary, oppressive, or capricious manner (WiseGeek, 2003). The most important fundamental level, is that it prohibits the government from taking any action against the individual that would result in the loss of liberty or property, without first making sure the individual notice of pending action, and has the opportunity to be heard. In every case, before the final decision can be made, the government has to provide the individual, through judicial or administrative procedures that are fair to the individual and impractical, and the ability to challenge the state action. The more serve the case of deprivation of liberty, the more rigorous the due process procedures afforded must be (WiseGeek...
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...Unit 3 : Week 3 - Homework 6 ------------------------------------------------- Top of Form | | Question 1.1. real property - In English Common Law, real property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth. | Question 2.2. personal property - Personal property is generally considered property that is movable, as opposed to real property or real estate. In common law systems, personal property may also be called chattels or belongings. | Question 3.3. eminent domain - The power the government has to obtain the property of an individual even without the person's full consent. In most countries, including the U.S., the land owner will be compensated for the land at fair market value. This power allows the government to seize land to be used in public enterprises such as roads, schools, or utilities | Question 4.4. condemnation - the seizure, as of property, for public use. | Question 5.5. inverse condemnation - is a term used in the law to describe a situation in which the government takes private property but fails to pay the compensation required by the 5th Amendment of Constitution. In some states the term also includes damaging of property as well as taking it. In order to be compensated, the owner must then sue the government. In such...
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...enforcing C.A.S.A. Dr. Fountaine’s and Ms. Stephenson’s case does not require this Court to decide any moral or ethical dilemmas regarding how people should, or may, accept or confront their own death. Rather, it is this Court’s responsibility to recognize that citizens have a constitutionally protected right in making significant life decisions for themselves, such as hastening one’s own death or asking another for help in the same, without the umbrella of judicial or legislative imposition. The beginning of this case should be examined similar to that of Roe v Wade 410 U.S. 113, in the reproductive rights context. Under the liberty protected by substantive due process under the Fourteenth Amendment to the Constitution, states should be permitted to regulate, not prohibit, physician assisted death. “The liberty protected by due process covers more than those freedoms explicitly named in the Bill of Rights…But such liberty can be limited if the state shows a compelling interest (not just a legitimate one)” Roe v. Wade 410 U.S. 113. States do possess a ‘compelling interest’ in preventing citizens from unnecessary death. However, this power extends to protecting the citizens from irrational, ill informed, or pressured decisions in that capacity. To that end, states do have the power to regulate and limit the...
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...Definition of Due Process of Law and Its Origin Gerald Thomas Strayer University POL 110 – U.S. Government Professor Turner January 26, 2012 Definition of Due Process of Law and Its Origin Due Process is cherished by conservatives as one of the most significant legal principles to emerge from the English common law tradition. The origins of due process are generally understood to be contained in chapter 39 of the Magna Carta, which declares that “No freeman shall be arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and (or) by the law of this land.” Largely through the efforts of the famous English jurist Edward Coke, the phrase “ law of the land” was replaced in legal parlance over time with the expression “due process of law.” At his urging, the fourth article of the Petition of Right (1628) reads “ That no man of what estate or condition that he be, should be put out of his land or tenements, nor taken nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law.” The modern counterparts of this article, found in the Fifth and Fourteenth Amendments of the U.S. Constitution as well as in various state constitutions, read that no person shall be “deprived of life, liberty, or property without due process of law.” As it emerged from the English tradition,...
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...PGC | Philippine Government & Constitution Prelims Reviewer THE CONCEPT OF STATE State o o Community of persons more or less numerous in number occupying the definite territory with government free of external control Elements: People A state can’t be a state without rational beings World is governed by laws of men People determines the law that can be applied Laws in this context: Laws of men ; not laws of nature Law: Law is ordinance of reason promulgated by the authority for the common good o 4 elements Reason Rule of action Anything that governs us is of reason Promulgated/Promulgation o Act of making o Informing others of the law o Congress is mandated/required to publish laws By the authority Congress makes the law Everything that we do is provided by the congress National in scope Local scope: mini-congress o Ordinance: available only to the place where official is elected Ordinance For the common good Majority: 50%+1 Territory Not limited to the land Pertains to the land, water, sea and air Countr has exclusive power and right If you’ll go to the other country, you’ll pay You have to know your territory o As a sovereign people, you are free to go to your territory without asking permission Government Agent of state ; not the actual state Forms of government o Monarchial Run by royalties Saudi, Brunei, Bahrain, UAE The King and Queen has actual powers Note: England is not a monarchial country ; the establishment...
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...Real Estate Land Use definitions Land Use & Climate: The idea that land use directly affects climate and weather. It proposes that land use, population growth, and the increased sprawl of development can be a contributing factor in how the climate or weather will be like in the near future. Incrementalism: It is necessary to accept the realities of the processes by which planning decisions are taken; essentially incrementalist approach replaces grand plans by a modest step by step approach which aims at realizable improvements to an existing situation. It is a method of successive limited comparisons’ of circumscribed problems and actions to deal with them. Impact Fees: A charge levied on developers by local governments to pay for the cost of providing public facilities necessitated by a given development. Rational Nexus: A reasonable connection between impact fees and improvements that will be made with those fees. Jurisdictions must be able to justify the fees they charge developers by showing that the fees will be spent on improvements related to the development. Linkages: Typically, a payment to a municipality for some needed development that is not necessarily profitable for a developer (say low-income housing) in exchange for the right to develop more profitable, high-density buildings (say, commercial development). Incentive Zoning: Zoning provisions that encourage but do not require developers to provide certain amenities or qualities in their projects in return...
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...Assignment: GM520 1. Smoking of Electronic Cigarettes on Aircraft The regulation on E-cigarettes is from the Department of Transportation. This regulation is very interesting for me because I grew up around mostly cigarette smokers. My mother used to smoke, my father, my grandparents, my sisters and brothers. In the country that I came from, smoking is one of the cheapest vices. When you go out of your house you will never miss a person smoking. I chose this regulation because I am basically concerned about the air we breathe especially if we are a non-smoker. I have been on few flights myself and I have never encountered somebody smoking e-cigarettes myself. But, since this new technology is growing and although it has claimed to reduce the risk of real cigarette-smoking, we are still unaware of the negative impacts it may bring to the air quality within the aircraft, and the impact it brings to the high-risk passengers aboard the aircraft. This regulation may not affect the organization I am working for but it definitely affects me as an individual. I work in a bank as a teller and thrice this year I have been a passenger of a plane which is preferable to me than driving 6 hours. I love flying and I would definitely enjoy it more with clean atmosphere and without the disturbance of a passenger sitting beside me inhaling and exhaling vapors. But of course this is not only about me, but of the population that is aboard the aircraft. A plane may consist of elderly...
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...Constitutional Law: Feminist Critiques of Public/Private Distinction By Frances Olsen INTRODUCTION Frances Olsen (born on February 4, 1945) is a professor of law at UCLA. She teaches Feminist Legal Theory, Dissidence & Law, Family Law, and Torts. Feminist Legal Theory is just over a decade old in the United States and is even younger in most other countries. Here, Frances Olsen presents one of her articles from within this burgeoning field. The topic of “private/public” has been actively debated in various scholarly discourses for many years. The factors such as the protection of individual decisional autonomy (private) from state regulation (public), and the preservation of communal interests (public) vis-à-vis personal pursuits (private) creates a conceptual tension. The present article particularly deals with the attempts of the female critiques/ advocates to challenge and even eliminate the distinction between private and public spheres. Frances Olsen presents the arguments of the feminists’ critiques of the public private divide that in many situations, this divide disadvantages women and the institutions with which women are traditionally associated such as the family. The author further says that by classifying family as ‘private’ the public private distinction often serve to shield abuse such as domestic violence. Domestic violence is illegal in every state. However, confusion about whether this is a public or private problem has not disappeared. I...
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...Alston v. Advance Brands and Importing Company (Page 65) 1. Given the courts reference to the rights of parents in the case of Alston v. Advance Brands and Importing Company, I do not feel there is any alternative theory. This is because, the plaintiffs cannot demonstrate that they have standing because they cannot show redressability or a remedy. 2. If Alston had been the parent of a smoker who suffered a smoking-related illness, Alston still could not allege an injury despite the fact that several different brands of the cigarettes contributed to the injury. There was no law broken by the manufacturer but by both the third-party seller and the underage purchasers. Brower v. Gateway 2000, Inc (Page 74) 1. The way that I would rewrite Gateway’s clause to be sure that it would be judged by the New York courts, would be first to not ask for arbitration before the ICC. Simply make the terms tolerable for the plaintiffs who seek protection of their rights. Furthermore, if the courts find that the defendants are liable then all fees should be refunded. 2. A. In this case the practical implication of Gateway’s loss is that their arbitration clause is unreasonable and burdensome to plaintiffs, it favored Gateway and it chose ICC as the arbitration forum. B. If Gateway had prevailed; it would have changed the cost-benefit analysis involved in deciding whether to settle the case because most of their computers cost less than the required amount from both parties. DiMercurio...
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...Describe the concept of due process: Due process is a legal term from the government. It is a principle that the government must respect the legal rights of an individual according to the law. This due process holds the government to the law of the land protecting people from the states power. This is kind of a way of limiting what the government can and can’t do in efforts to make them not be unfair to the people. I read this and I feel that it helps explain what I am trying to say a little more clearly. "The essential elements of due process of law are notice, an opportunity to be heard, and the right to defend in an orderly proceeding." Fiehe v. R.E. Householder Co., 125 So. 2, 7 (Fla. 1929). The constitution states only one command twice. The Fifth Amendment says to the federal government that no shall be “deprived of life, liberty or property without due process of law”. The Fourteenth Amendment uses the same eleven words called Due Process Clause and it is used to describe the legal obligation of all states. Basically they are giving an promise of assurance that all levels of the government must operate within the law and provide fair procedures. Describe three of the legal defense. The three defenses that I would like to describe would be the insanity defense, self-defense, and the entrapment defense. The insanity defense is the defendant claims that because of mental health problems they were not responsible for their actions. The insanity defense is based on...
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...160 Ohio App.3d 634; Ricker v. Fraza/Forklifts of Detroit; | |[pic] |[pic] |Page 634 |[pic] | RICKER, Appellant v. FRAZA/FORKLIFTS OF DETRIOT, Apellee. [Cite as Ricker v. Fraza/Forklifts of Detriot, 160 Ohio App.3d 634, 2005-Ohio-1945] 2005-Ohio-1945 Court of Appeals of Ohio, Tenth District, Franklin County. No. 04AP-582 Decided April 26, 2005 LAZARUS, Judge. {¶1} Plaintiff-appellant, J. Griffin Ricker, appeals from a decision of the Franklin County Court of Common Pleas, dismissing his complaint against defendant-appellee, Fraza/Forklifts of Detroit ("Fraza"), for lack of personal jurisdiction. {¶2} Ricker initiated this action with a complaint seeking damages for breach of an oral contract to provide insurance consulting services. The complaint alleges that Ricker is an insurance consultant with his principal place of business located in Hilliard, Ohio, and Fraza is a Delaware corporation with its principal place of business located in Roseville, Michigan. The complaint further alleges that, in 2002, Fraza hired Ricker to provide insurance consulting services, and agreed to pay Ricker $30,000 if business insurance was obtained through the efforts of Ricker. Such payments would apply to subsequent annual renewals of insurance. Ricker obtained insurance coverage for Frazer from Universal Underwriters Group for 2002. Fraza paid Ricker for his consulting...
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...hostile, as a mob met the youths. The trial judge appointed “all members of the bar” for the purpose of the arraignment. The defendants themselves were illiterate and “ignorant”. They were all tried separately, each trial lasting a day, convicted, and sentenced to death. Issue- Whether the defendants had sufficient counsel. Whether the Due Process Clause of the Fourteenth Amendment had been violated. Held- No. The Court noted that when counsel was in place that neither the defense counsel nor the court could say what a prompt and thoroughgoing investigation might disclose as to facts as there had been no proper investigation, and no opportunity to do so. Given the hostile circumstances, the illiterate status of the defendants, the close surveillance, their isolation from their families, and that they stood in deadly peril of their lives, the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process. Discussion- The necessity of counsel is so important and urgent that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth...
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