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What is meant by Procedural Due Process?
- The procedures the government must follow to take away someone's life, liberty, or property. The analytical steps are: |
- 1) Has there been a deprivation of life, liberty, or property? If yes, then . . .
- 2) What procedures are required?
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When does a deprivation of life, liberty, or property occur?
- • Loss of a significant freedom provided by the Constitution or a statute
- • Loss of an entitlement of which a person has a reasonable expectation of receiving, or a reasonable expectation of continuing to receive
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Does government negligence constitute a deprivation of life, liberty, or property?
- • Government negligence is generally insufficient to reach due process deprivation.
- • Generally, there must be intentional government action, or at least reckless action for a deprivation to occur
- • In emergency situations, need govt conduct that “shocks the conscience.” (e.g. high speed chase)
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Would the government's failure to protect someone from a privately-inflicted harm constitute a procedural due process violation?
- No.
- Generally, the government's failure to protect someone from a privately-inflicted harm is not a procedural due process violation. EXCEPTION: govt created danger or the person is in govt custody
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If there has been a deprivation, what kind of procedure must the government provide to satisfy procedural due process?
- The type of procedure needed depends on a 3-factor balancing test. Consider the following:|
- 1) Importance of the interest to the deprived individual, and
- 2) Whether additional procedures would provide better and more accurate decisions and reduce erroneous deprivation, and
- 3) The government's interest in efficiency and cost-savings
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Examples of procedures designed to reduce erroneous deprivation
- a) Welfare benefits: Termination requires both notice and a hearing
- b) Social Security benefits: Termination requires only a post-termination hearing
- c) Parent's custodial rights over children: Termination requires both notice and a hearing
- d) Punitive damages: Requires jury instructions and judicial review
- e) Non-citizen held as enemy combatant: Ability to challenge continued detention
- f) US citizens facing criminal charges in a foreign country held by American Military: Habeas corpus petition and judicial review of detention in federal court
- g) Risk of actual judicial bias: Requires recusal of the actually biased judge
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What is Substantive Due Process?
Substantive Due Process asks whether the government has an adequate reason for taking away a person's life, liberty, or property.
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What 2 areas receive the most focus in Substantive Due Process?
- 1) Protection of economic liberties (though only minimal protection afforded; rational basis test), and
- 2) Safeguarding property
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WHAT is the test for a Fifth Amendment Taking?
- 1) Is there a taking of private property? (Possessory or regulatory)
- 2) Was it for public use? (If no, Govt must return property)
- 3) Was there payment of just compensation? (Must be reasonable market value)
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WHEN does a Fifth Amendment Takings occur?
- Possessory taking:
- Government confiscates or physically occupies physical property (no matter how minimal the physical occupation (e.g., cable TV wires is a Fifth Am. Taking)) |
- Regulatory taking:
- Government regulation leave no reasonably economically viable use of the property (Penn Central. Held: no taking, because owner could still derive economic use from RR and ground-level retail)
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Does a temporary denial of property use rise to the level of a Fifth Amendment Taking?
- NO, temporarily denying an owner use of his/her property is not a taking so long as the government's action is reasonable. 2-part test: |
- 1) Public use: Is it for "public use"? (broadly construed), and if so—
- 2) Just compensation: Is just compensation paid? Just compensation is measured in terms of loss to the owner in reasonable market value terms; gain to the government is irrelevant.
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When can a state or local government interfere with an existing private contract?
- • When the legislation does NOT SUBSTANTIALLY IMPAIR a party's rights under the contract, OR
- • the law is a REASONABLE and NARROWLY TAILORED MEANS to promoting an IMPORTANT and LEGITIMATE public interest
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Can a state or local government interfere with a government contract?
NO, unless the interference passes strict scrutiny (compelling interests, least restrictive means)
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The Constitution prohibits both the federal and state governments from adopting ex post facto laws. This means that neither the federal nor state governments can adopt laws that . . .
- a) Criminally punish conduct that was lawful when it was done, OR
- b) Increase punishment for a crime after it was committed|
- Note that the prohibition against ex post facto laws applies only to criminal cases—the prohibition does not apply to civil cases
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When the government interferes with a person's Privacy Rights, what level of judicial review is applied?
- Strict scrutiny (i.e., compelling interest, least restrictive means)|
- Exam tip—on the MBE, the best answer is that the government must meet strict scrutiny in order to interfere with a person's right to privacy (it won't necessarily be the case that the government should automatically lose)
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What rights are protected by a person's Right to Privacy?
- Marriage
- Procreation
- Custody of one's children
- Keep "family" together
- Control and upbringing of one's children
- Purchase and use contraceptives
- Abortion (see separate card)
- Private consensual same-sex activity
- Refuse medical treatment (see separate card)
- Travel across state lines (see separate card)
- Vote (see separate card)
- Note
: not all of these are subject to strict scrutiny
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What rights to an abortion does a woman have prior to viability of the fetus?
- Prior to viability a state . . .
- Cannot prohibit abortions. May regulate abortions, so long as doing so presents no undue burden on the ability to obtain an abortion.
- The prohibition of “partial birth abortions” is not an undue burden
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What rights to an abortion does a woman have AFTER viability of the fetus?
After the fetus has become viable, a state may prohibit abortions to protect the woman's life or health
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Is the government required to subsidize abortions or to provide abortions in public hospitals?
No.
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Are notice and consent laws for abortions constitutional?
- 1) Spousal consent and notification laws are always unconstitutional
- 2) Parental notice and consent laws for unmarried minors may be constitutional, so long as the state creates an alternative judicial procedure
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Although a person has a right to refuse medical treatment, what limits can a state impose on the exercise of that right?
- • Competent adults have the right to refuse medical treatment, even life-saving medical treatment
- • Can require clear and convincing evidence that a person wants treatment terminated
- • May prevent family members from terminating treatment of another
- • May prohibit physician-assisted suicide (there is no constitutional right to this)
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Limitations imposed on a person's Right to Travel are reviewed with strict scrutiny. What sorts of actions come within the right to travel (and are therefore subject to strict scrutiny)?
- • Law that prevent a person from moving into or between states
- • Durational requirements precedent to receiving in-state benefits (exam tip on voting–50 days is the maximum allowable durational requirement)
- • NB: There is no fundamental right to international travel (need only satisfy rational basis)
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The right to vote is a fundamental right. What level of scrutiny is used to review limitations on that right?
- Strict scrutiny must be met if a law denies some citizens the right to vote. Note— |
- 1) One-person-one-vote
- 2) At-large elections are constitutional unless there is proof of a discriminatory purpose (not just impact)
- 3) Use of race in drawing electoral districts must meet strict scrutiny
- 4) Counting uncounted votes without standards in a presidential election violates equal protection
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Is education a fundamental right?
NO, there is no fundamental right to education under Equal Protection or the US Constitution
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Is there a fundamental right to practice a trade or profession?
NO. This is not a fundamental right under Equal Protection or the US Constitution.
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