1 Chapter 4 Part III

2 Loudermill at the United States Supreme Court This was an employment case dealing with due process rights The state claimed that it could modify (reduce) due process rights as a condition of employment How is this supported by the "bitter with the sweet" doctrine? Why do you think 8 members of the United States Supreme Court rejected this argument? What would such a theory do to due process?

3 Gilbert v. Homar, 520 U.S. 924 (1997) Who did the guard work for? Why did this make his arrest for marijuana possession a particular problem? Did he get any due process prior to this suspension from the workplace? Why? What are the limits of this opinion? Why should he get any pre-termination due process?

4 Goss v. Lopez, 419 U.S. 565 (1975) School suspension What due process did the court require? What was the Mathews analysis?

5 Ingraham v. Wright, 430 U.S. 651 (1977) School paddling case What due process did the court require? What was the Mathews analysis? How does the analysis differ from Goss ? Why? Do we still paddle students? Why not?

6 Board of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978) Academic suspension case for a medical student What due process did the court require? What was the Mathews analysis? Would this analysis differ if this had been a disciplinary suspension?

7 Law School Disciple and Due Process In Mathews terms, what are the issues in providing due process for academic issues? What are the potential costs, beyond time and money? How do we tell whether it is an academic or disciplinary issue? What about plagiarism? Cheating? Why is the Mathews basis for treating academic and disciplinary issues differently?

8 What does a Right to an Impartial Judge Mean? What about economic interests? What does separation of functions mean? Did the United States Supreme Court find that this was Constitutionally necessary, i.e., if not required by the APA? What happened in Withrow v. Larkin, 421 U.S. 35 (1975), the medical licensing case? Note - LA is not so clear on this

9 Disqualifying an Administrative Law Decisionmaker for Bias What is the United States Supreme Court standard? What does it take to show this? What happened in Texaco, Inc. v. FTC, 336 F.2d 754 (D.C. Cir. 1964)? Would generalized statements, such as the FCC chair deploring advertising to children, meet the standard?

10 Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966) Who was meddling in the FTC case? What did the court find? What is allowed for pending cases? What is the analysis if it had been the president? How does this change the issues?

11 Expertise v. Special Knowledge It is generally seen as a good thing for ALJs to know about the areas in which they hear cases When does this become a problem? Why?

12 Ex Parte Communications Why do ex parte communications impinge the rights of the regulated party? Does it matter whether they come from inside or outside the agency? How can the harm be cured?

13 Emergency Circumstances

14 North American Cold Storage What type of property is at issue? New property or old property? Why does the city want to do? Why? Is this a taking? Compensation analysis Public use analysis

15 What Process was the Defendant Entitled To? What process did the city provide? What process did the defendant claim he was entitled to? What process does the court say is constitutionally mandated? What is their rationale? What is defendant's remedy if the city is wrong?

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17 Doggie Due Process The Saga of "Tut-Tut," "Bandit," "Boo Boo," and "Sadie"

18 Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir.(N.C.) 2003) What is a dog "at large" What happened to plaintiff's dog? Where was this done? Why was this done? What due process was provided? How did plaintiff characterize the act in legal terms?

19 Plaintiff's Legal Claims Plaintiff claims under 42 USC 1983 Violation of a person's civil rights under the color of law Whose rights are violated? What is the constitutional claim, i.e., what part of the constitution has been violated?

20 The Characterization of a Dog What is the legal classification issue that plaintiff must address to state a 42 USC 1983 claim? Does the Constitution mention dogs? What class of animal does a dog fall into? Is it an animal ferae naturae? Is it the same as a cow? Why? What type of property does the court hold the dog to be?

21 Deprivation of Property Must the government pay compensation if it takes this sort of property? Is this a taking? How does the government characterize killing the dogs? Did the court find the dog had been seized? Is a seizure the same as a taking?

22 Court's Factual Analysis What are the self-defense issues? Should these matter? The dissent says that this was a clear constitutional violation based on violations of federal law Did the majority find a federal dog protection act?

23 Add the Adlaw Context What is the Mathews analysis for this case? What is justification for the summary action? How is the dog like the bad chicken in North American?

24 Qualified Immunity We will return to this later in the course when look hard at 42 USC 1983

25 Doctrine of Necessity What is the Doctrine of Necessity? Why is it necessary? What examples might Katrina have posed? What does it tell us about the necessity of detailed laws trying to predict what will be necessary in an emergency? How might it arise in the judicial proceedings?

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