1. Chapter 4 - Adjudications
Whatever disagreement there may be as to the scope of the phrase “due process of law,” there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard. —Oliver Wendell Holmes, Frank v. Mangum, 237 U.S. 309, 347 (1915)

2. Substantive Due Process
Substantive Due Process refers to the limits on what government can regulate
Federal - commerce clause, national security powers, foreign affairs,
State - police powers v. privacy (abortion)

3. Modern Substantive Due Process
Substantive Due Process is a limited concept in modern supreme court jurisprudence
But a controversial one
The Affordable Care Act raised hard questions, but survived
This may change with the activist court
Even when there are constitutional limits, the court generally allows significant regulation
There may be a right to an abortion, but the state can regulate health and safety aspects of abortion clinics.
There may be a right to own a gun, but the state can regulate carrying the gun - probably.

4. Procedural Due Process
Procedural due process refers to the procedures by which government may affect the rights of an individual in a specific situation
Procedural due process arises through adjudications and other proceeding that affect individuals or a small group of persons based on the specific factual determinations
There is no procedural due process right in legislation
What is your appeal for legislation?

5. Criminal Due Process Where are the criminal due process rights found?
What are the basic criminal due process rights?
These were applied to the DOJ in the early 1900s.
They were not applied to the states until the Warren court.
What is the criminal due process right that is under attack and might be eliminated by a future conservative court?

6. How Well Does Criminal Due Process Work?
Do public defenders have the same budget and resources as prosecutors?
What does this mean in an adversarial system?
What percentage of criminal defendants get their day in court?

7. Why Administrative Due Process is Not Liberal or Conservative
Conservatives
Want the little man (and the rich man) to be fairly treated by the government, i.e., to be able to resist regulation
Liberals
Want the individual to get lots of due process, and cannot exclude corporations.
Both think the government losing against individuals is good, unless it is an area they want to regulate.

8. Realities of Regulation
The rule of agencies
Agencies can do effective regulation
Agencies can give extensive due process to regulated parties
Agencies can be cheap
Agencies can work quickly
PICK 2, at most

9. History of Due Process
The constitution mostly did not apply to the states
The 14th amendment was eventually used to apply the constitution to the states
Many of the criminal due process protections we take for granted stem from the Warren Court and cases decided in the 1950s and 1960s.
Criminal due process was developed earlier than administrative due process
The current cutting edge of due process is transforming criminal due process into administrative, as with terrorist detainees

10. Takings Review What is a traditional property "taking"?
What due process is involved?
What about compensation?
How is compensation measured?
Why is traditional takings jurisprudence much older than individual rights jurisprudence?

11. Regulatory Takings What is a regulatory taking?
Why are these a hot topic in land use?
What are the consequences of forcing the state to pay for any diminished value caused by regulation?
Should the owner pay the state if regulation enhances property values?
Zoning?
Right of reclamation in LA?

12. Accidental Deprivations
Assume the postman runs over your dog or the forest service accidentally burns down your home
Have you suffered a taking?
Are these due process deprivations?
If so, how could the government provide due process?
(We cover these in the tort claims act section.)
What if the government repeatedly “forgets” to give mental patients a hearing before committing them?
Is this different?

13. Rights v. Privileges - History
In 1940 a city fires a policeman because the police chief heard a rumor that the policeman had accepted free coffee and doughnuts from a shop on his beat.
Due process violation?
Did not need to provide due process for not granting or for terminating a government benefit
Government benefits were construed broadly - going to a state college
You could condition these with restrictions that would otherwise be impermissible
Bitter with the Sweet Doctrine

14. Supreme Court Context Warren Court
What was the jurisprudential shift on the United States Supreme Court in the 1950s and 1960s?
What has been the trend of the court since the Warren Court?
How does this compare with the court's history?

15. Goldberg v. Kelly, 397 U.S. 254 (1970)
What process is due for the termination of welfare benefits?
The last gasp of liberal united states supreme court due process jurisprudence.
Goldberg sets up Matthews v. Eldridge.

16. Learning Objectives
Learn how the status of the affected persons can change the nature of the due process needed for fundamental fairness
Learn how increasing due process rights can have unintended consequences in a program with limited resources

17. Statutory Entitlements
What makes a benefit an entitlement that triggers due process?

18. Matrix Regulation Test 1 Test 2 Claimant Status
Income less than $3000 for family of 2
Income less than $6000 for family of 4 x
Assets less than $2000
Head of household is disabled

19. The pre-1996 Welfare System
What was/is the general attitude toward people on welfare?
What was AFDC?
Aid for families with dependent children.
What were believed to be the unintended consequences of the welfare system?
Daniel P. Moynihan’s Benign Neglect Memo to President Nixon.

20. Facts of the Case What state did this case arise in?
AFDC is a federal program: What was the role of the state?
What was the economic status of plaintiffs?
How does this complicate their effectively asserting their legal rights?
Why did this result in the right to appointed counsel for indigent criminal defendants?

21. Pre-Goldberg: Post vs Pre-Deprivation Due Process
What was the administrative process that plaintiffs were contesting?
What do you think is the relationship between the agency personnel and the plaintiffs?
What were the problems with the informal system of reevaluating beneficiaries status?
What was the impact on plaintiffs of terminating benefits?
How does this further complicate post-deprivation hearing rights?

22. Why Does Plaintiff Want a Pre-termination Hearing?
Do you think there were real bias issues in the process being challenged?
Why couldn't plaintiff file a written response to the termination letter?
What could she do at a hearing that she could not do in writing?
Why wasn't a post-termination hearing enough?
Why didn't the state want to give everyone a pre-termination hearing?

23. Goldberg Rights - I
1) timely and adequate notice
2) oral presentation of arguments
3) oral presentation of evidence
4) confronting adverse witnesses
5) cross-examination of adverse witnesses

24. Goldberg Rights - II
6) disclosure to the claimant of opposing evidence
7) the right to retain an attorney (no appointed counsel)
8) a determination on the record of the hearing
9) record of reasons and evidence relied on; and
10) an impartial decision maker

25. Administrative Costs of Goldberg
What does granting these hearings do to the cost (delay + personnel time) of removing someone from welfare?
What does it do to the balance of benefits costs to administration costs?
What does this do to the global cost of the benefits system?

26. Short-Term Impact of Goldberg
How does raising the administrative costs affect processing new claims for welfare?
What is the incentive for the welfare officers under the Goldberg ruling?
What expectation does it create for welfare recipients?
What long term problem did this contribute to?

27. The Subsequent History of Goldberg
Never overruled
Ultimately limited to its specific facts
Superseded by Matthews six years later
Unfortunately, many scholars did not notice this and have argued that all deprivations that affect individuals should have pre-deprivation process.

28. Fixing Welfare - The 1996 Act
Who pushed for welfare reform?
Who signed it?
What is the new name for AFDC?
TANF - Temporary assistance for Needy Families
What does the name change tell you about the change in philosophy?
What do you get and for how long?
Supplemental Nutrition Assistance Program
How does this affect future Goldberg actions?
Will there be facts in dispute?

29. Goldberg's Children
Goldberg created the notion of an entitlement, i.e., a continued right to a government benefit as long as you met the triggering criteria for the benefit.
The next cases explored when this applied to employment, outside of civil service protections and public employee union contracts, which are more expansive than the constitutional minimum.