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Notes For Con Law
Notes For Con Law
Procedural due process: imposes constraints on govt decisions which deprive individuals of
liberty or property interests within meaning of Due Process Clause of Amendment V or XIV.
- Due process is flexible, heavily context-dependent.
- Fairness required (bare minimum requirement)
o Notice of reasons be given
Reasons based on evidence (written records)
o Opportunity to respond in writing be afforded
o Post-termination, there would be a fair hearing with potential for judicial
review, and potential for payment of benefits missed after the fact
- Factors considered (three-factor balancing test):
o Private interest affected by the action at hand
o Risk of erroneous deprivation of such interest through procedures used
Flip side: probable value, if any, of additional or substitute procedural
safeguards
o Public interest (Govt interest)
Administrative burdens that procedural requirement would entail
Pre-termination hearings are expensive
Inherent incentive to seek the hearing, as you will continue to
receive benefits during the litigation
Distinguishing from Goldberg:
- Private interest:
o Hardship for disabled worker is likely to be less than that of welfare recipient
- Risk of erroneous deprivation:
o Ways of determining disability (medical assessment) more reliable and scientific
than the witness statements in welfare need assessment.
- So, requiring such hearings in this case would be unnecessarily expensive
Defining Property:
Roth (SC, 1972): no constitutional right to a statement of reasons and a hearing for a professor
- Range of interests protected by procedural due process is not infinite
o Liberty and property are broad and majestic terms
- State did not deprive Roth of Property, did not make any charge that might seriously
damage Roth
o Good name, reputation, honor, integrity constitute liberty none here
o Re: property, to have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it.
He must, instead, have a legitimate claim of entitlement to it
- Property interests are not created by Con, but by existing rules or understands that stem
from independent sources such as state law (including contracts!)
o Here, Roth is missing that property interest, that entitlement to benefits, held by
the welfare recipients in Goldberg
o Transfer and other changes, even if they have more burdensome conditions, as
long as they are within the normal limits or range of custody which conviction
has authorized State to impose then its all good
States may under certain circumstances create liberty interests protected by Due Process
o But these interests will generally be limited to freedom from restraints that impose
atypical or significant hardship on the inmate in relation to ordinary incidents of
prison life
Here, no dramatic departure from basic conditions of Conners
indeterminate sentence
Solitary confinement itself does not implicate constitutional liberty interest
So, what does liberty mean? Thats for the justices to decide, not legislature
- If statute says that transfer from medium to max security prison requires a hearing, then
courts will enforce that statute
o Just like Roth
01/22/2016
- Review
- Property
o Con does not create property rights, simply describes what procedures exist when
the govt tries to take that property away
What was new about Goldberg
Statutory promises also property, if person has a legitimate claim
to the entitlement
o That legitimacy comes from determinative standards (who
is entitled to disability benefits, welfare, etc.) that state has
provided for the benefit
o Loudermill: even if state creates a procedure for a particular right (entitlement),
the procedure and the right are separate
So in cases of lousy procedures, that still violates Due Process even if
State has their own statute
o SO, the Due Process remedy in these cases are give me a hearing! not give me
my job! or give me my welfare!
Hearing advantages: right to continue benefits until you get your hearing
Also, getting notice with a set of reasons is pretty cool, and gives
you something to argue about, challenge
- Liberty
o Prison cases, youre already in, they do something to make your living conditions
worse
Court says, well, if punishment extends time, denies parole, denies
something like good-behavior credit, then you get a hearing
But what about something like solitary confinement? Or transfer to
max security from intermediate?
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Marbury v. Madison
o Facts:
On his last day in office, President John Adams named forty-two justices
of the peace and sixteen new circuit court justices for the District of
Columbia under the Organic Act. The Organic Act was an attempt by the
Federalists to take control of the federal judiciary before Thomas Jefferson
took office.
The commissions were signed by President Adams and sealed by acting
Secretary of State John Marshall (who later became Chief Justice of the
Supreme Court and author of this opinion), but they were not delivered
before the expiration of Adamss term as president. Thomas Jefferson
refused to honor the commissions, claiming that they were invalid because
they had not been delivered by the end of Adamss term.
William Marbury (P) was an intended recipient of an appointment as
justice of the peace. Marbury applied directly to the Supreme Court of the
United States for a writ of mandamus to compel Jeffersons Secretary of
State, James Madison (D), to deliver the commissions. The Judiciary Act
of 1789 had granted the Supreme Court original jurisdiction to issue writs
of mandamus to any courts appointed, or persons holding office, under
the authority of the United States.
o Define judicial review.
Supreme Court has authority to review acts of Congress or the executive
branch and determine their constitutionality, and void those acts if
unconstitutional
o Identify the steps of Marshall's argument.
Does Marbury have a right to commission?
Yes, there is a determinative standard with appointments