Procedural Due Process Flashcards
Can the government take life, liberty, or property with Due Process?
YES. The Gov. can take life, liberty, or property w/ D.P.
2 Questions for Procedural Due Process.
(1) Is it life, liberty, or property?
(2) Did the Government provide Due Process?
(1) Is it life, liberty, or property?
Does the person have a “REASONABLE EXPECTATION OF THE CONTINUED RECEIPT OF THE BENEFIT?”
If not life, liberty, or property, no due process problem
(2) Did Government Provide Due Process?
Government has to provide a number of due process before taking away benefits.
Ex. Have to give notice and “fair hearing”
If Due Process is Due (What Process is Due?)
3 Part Balancing Test (Eldridge)
(1) The P’s interest in the case, is it high value interest, or low value interest?
(2) The governments interest
(3) The likelihood of the erroneous determination (likelihood the government screwed up) w/o additional measures of process in place.
What you need to know from Procedural Due Process
- Almost everything government does is a classification, so on exam, look to Equal Protection. *
When is a person entitled to due process?
When a person has a reasonable expectation of continued receipt of the benefit.
Who defines the “reasonable expectation of continued receipt of the benefit?”
The Government themself
Prof. on year-to-year Contract?
No reasonable expectation of continued receipt of the benefit.
Therefore do not owe Due Process.
Prof. who is tenured?
Yes, they have a reasonable expectation of continued receipt of the benefit.
Therefore, do owe Due Process.
Is saving money a valid government interest?
No. Government will always try to save money.
Examples of providing Due Process.
- Notice
- Hearing
- Ability to call witnesses
- Ability to bring evidence
- Right to an attorney
