Procedural DP Flashcards
definition
deprivation of liberty - loss of significant freedom provided by const. or statute
deprivation of prop - an entitlement and that entitlemnt is not fulfill
e.g. an entitle exists if there is a reaosnable expectation of the receipt of a benefit
gov negligence is not sufficient for deprivation of PDP. Must be intentiaonl gov action or at least reackless. in emergency situations, govnermetn is liable if it “shocks the conscience”
Procedures
balance (i) and (ii) against (iii):
- importance of an interes tto the individual
- ability of additional procedures to increase the accuracy of the fact finding
- govnerment’s interest
examples
- welfare benefits must get notice and hearing before terminated
- SS benefits - only need post termination hearing
- bfore school can discipline a student must be notice of charges and opporutnity to explain
- before parent’s right of cusotry of a child can be permanently terminated must be notice and a hearing
- puvnitive damage awards requires instrucitons to jury and judicial review of reasonableness
- american citizen detained as combatant must get DP
- except in exigent circumstanbces prejudgment attachmetn or govnerment seizure of assets require notice and a hearing
economic liberties
only rational basis is used for laws affecting economic rights.
takings caluse
gov may take private property if it provide just compensation
possessory taking - gov confiscation of physical property
regulatory taking - gov regulation is ta king if it leaves no reasonable economically viable use of property
notes
- govn conditions on dvelopment of property must be jsutified by a benefit that is roughly proportionate to the burdne imposed
- property owner may bring a takings challenge to regulations that existed a thte time property acquired
- temporarily denying an owner of use of property is not t akings so long as the govnerments action is reaosonable
NOTE - measured in terms of loss to owner NOT gain to taker
contracts clause
no state shall impair obligations of contracts
1. applies only to state and local interferecne with existing Ks
2. state or local interference w/ private ks must mee INTERMEDIATE SCRUTINY
Q - does the legislation substnatially impair a party’s right under an existing contract?
Test - Law mus tbe reasonably and narrowly tailored means of promoting an imporntat and legitimate public interest
3. state or local interference with govnment contracts ;must meet STRICT SCRUINTY
privacy is a fundamental right protected by substantive DP
- right ot marry
- right to procreate
- righ tot custody of kids
- righ tto control upbringing of kids
- right to keep family together
- right to purchase and use contraceptives
- right to abortion
- right to private consensual homosex conduct
- right to refuse medical treatment
- no right to hysician assisted suicide
Right to abortion
prior to viability state may not probhit abotions but may regulat abortions so long as they do not create an UNDUE BURDEN on teh abilityto obtain abortions
e. g.
1. 24 hour waiting period is fine
2. abortions only by licensed physicains
3. not allowed partial birth abortions
3.
after vaiability state may prhobits abortions unless necssary to protect woman’s life or health
gov has no duty to subsidize abortions
spousal consent and notification laws are unconstitutional
state may require parental notice and consent for unmarried minor abortion so long as it creats an alternative procedure where they can obtain abortion by going to judte and jduge finds its in best interest and mature enough to decide for self.
right to refuse medical treatment
competnet adults have right to refuse evne life saving medical treatment
statmente may require clear and convincing evidence that person wanted treatment temrinate dbefore it is ended
state may prevent family members from terminating treamtnet o another
2A
right to own gun in home (can regulate where can people have guns, who can hve them and types)
right to travel
laws that prevent people from moving into a state must meet strict scrutiny
durational residency requirements must meet strict scruitny (e.g. live in JUR for a specified time to get a benefit)
restrictions on foreign travel need meet only the rational basis test
right to vote
STRICT SCRUTINY
regulations of the electoral procees to prevent fraud need be on balance desirable
at larage elections are constitutiona unless proof of discrimintaory purpose
use of race in drawing election district lines must meet strict scrutiny
counting uncounted votes without standards in presidential electoin violates EQ
fundamentla right to education
THERE IS NONE!
