What is Procedural due process?
Whether the government has used adequate process to take away a person’s life, liberty, or property
What is substantive due process?
Whether the government has an adequate substantive reason to take away a person’ life, liberty, or property
What is equal protection?
Whether the government’s differences in the treatment of people are adequately justified
How do we distinguish between due process and equal protection on the bar exam?
Look to the remedy sought
What are the two questions for analyzing procedural due process?
- Has there been a deprivation of life, liberty, or property?
- What procedures are required?
What constitutes a deprivation of liberty for procedural due process?
There is the loss of a significant freedom provided by the Constitution
What are the four frequent examples that implicate deprivation of liberty without due process?
- Absent emergency, adult’s need notice and hearing before being institutionalized)
- Institutionalizing children requires only a screening)
- Harm to reputation, by itself, is not a loss of liberty)
- Prisoners rarely have a liberty interest
What is a deprivation of property for procedural due process?
A person has an entitlement, and that entitlement is not fulfilled
(rights/privileges distinction no longer observed)
What level of government culpability is required to state a due process claim?
Intentional or reckless (negligence not enough)
In emergency situations, government is liable under due process only if its conduct “shocks the conscience”
Failure to protect from privately inflicted harms does not deny due process
What is the test for what procedures are required by due process?
Balance:
- The importance of the interest to the individual
- The ability of additional procedures to increase the accuracy of the fact-finding
- The government’s interests
What are the key bar exam examples of procedural due process balancing? (7)
- Before welfare benefits can be terminated, there must be notice and hearing
- When SS disability benefits terminated, there need only be a post-termination hearing
- When a student is disciplined by a public school, there must be notice of the charges and an opportunity to explain (no trial-type hearing required; corporal punishment requires no due process)
- Before parent’s right to custody of a child can be terminated, there must be notice and a hearing
- Punitive damage awards require instructions to the jury and judicial review (grossly excessive damages violate due process)
- American citizens held as enemy combatants must be given due process
- Except in exigent circumstances, pre-judgment attachment or seizure must be preceded by notice and hearing (except property used in illegal activity, even if the owner is innocent)
What are economic liberties?
??? (unanswered in lecture)
What is the level of scrutiny applied to economic liberties?
Rational basis
What is the process for analyzing takings?
Is there a taking
Is it for public use
Is just compensation paid (value to owner, not to taker)
What are the two types of takings?
Possessory taking (confiscation or physical occupation of property)
Regulatory taking (government regulation leaves no reasonable economically viable use of the property)
What are the three extra rules for bar exam regulatory takings?
- Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed
- A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
- Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable
What is the contracts clause?
The state shall not impair the obligations of contracts
(N.B. applies only to EXISTING contracts!)
(N.B. applies only to state or local interference with existing contracts, not to federal govt)
What are the levels of scrutiny for various types of contracts?
Private contracts: “intermediate scrutiny” (does legislation substantially impair a party’s rights; is the law reasonably and narrowly tailored means of promoting an important and legitimate public interest) (N.B. this level of scrutiny is like standard intermediate scrutiny, but is phrased differently and combines elements of RB review)
Government contracts: strict scrutiny
What is the level of scrutiny for ex post facto civil liability?
Rational basis
not flatly prohibited the way ex post facto criminal laws are
Under what part of the constitution is the right to privacy protected?
Substantive due process
What are the typical rights of privacy?
9 rights
- The right to marry: strict scrutiny (heterosexual and homosexual couples)
- The right to procreate: strict scrutiny
- The right to custody of one’s children: strict scrutiny
- The right to keep the family together: strict scrutiny
- The right to control the upbringing of one’s children: strict scrutiny
- The right to purchase and use contraceptives: strict scrutiny
- The right to abortion: undue burden
- The right to engage in private consensual homosexual activity
- The right to refuse medical treatment
- NO right to refuse medical treatment (rational basis)
What are the special rules of the right to abortion?
- States may regulate but may not prohibit abortions pre-viability
- No duty to subsidize abortions
- Spousal notice and consent laws unconstitutional
- Parental notice for unmarried minors okay, so long as alternative procedure before judge exists
What is the 2A for the bar exam?
You can keep guns in your home for security
Scrutiny unknown
May regulate people, places, and types of guns
What part of the constitution protects the right to travel?
Equal protection AND P&I
