Administrative Law

Chapter 2

Emergency Proceedings

What does North American Cold Storage tell us about pre-action hearings?

What about compensation for destruction of public property?

What is the difference between a seizure of property and a taking?

What does the LA APA tell us?

Goldberg v. Kelly

What is an entitlement and why is it key to a due process analysis?

What do Sinderman and Roth teach? What is the risk of error/cost of hearing

analysis in Goldberg? Why does this tend ratchet up due process?

Goldberg Rights

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 6) disclosure to the claimant of opposing evidence 7) the right to retain an attorney 8) a determination on the record of the hearing 9) record of reasons and evidence relied on; and 10) an impartial decision maker

New Property

How is new property created? What is the bitter and sweet doctrine for new

property (Loudermill)? Why did the court reject this doctrine? Once new property is created, what governs

due process for it? How can legislatures avoid creating new

property while still providing benefits?

Mathews v. Eldridge

What did Goldberg do for the costs of welfare benefits administration?

Why are these costs much more significant for SSD? How does this shift the cost of error/cost of due

process equation? Mathews Factors: C = P x V Cost = Probability of increased accuracy v. Value of

the benefit

Prisoners

Do prisoners retain any rights? What is a liberty interest and why is it key to

a due process claim? What did Hewitt rule and why did this cause

problems? What is the Sandin expectations of the

sentence test and how does it limit Hewitt? Why not give prisoners more due process?

Stigma

How does stigma modify the right to hearing in cases such as Roth?

Is stigma alone enough? What about lists of drunks? What was the

additional disability? What is the remedy for stigma alone?

Torts instead of Due Process

When is a tort claim a substitute for due process in a prison case?

Is this a realistic remedy for the destruction of a $24 hobby kit?

What about tort law as a remedy for stigma? Since these cases are against government

employees, what complicates tort remedy?

Contract Rights

What is the remedy for a breach of contract (or obligation)?

What happened to medical resident who sued because the school did not honor the match?

What about the workers comp benefits? Why did proof of reasonable and necessary

derail the due process claim?

Problem

Low income housing has one year leases and bounces tenants if they deal drugs

Plaintiff contests being bounced without getting a hearing first

Should she be able to get one first? If Defendant loses, can it solve the problem

with month to month leases that are not renewed if you deal drugs?

Students

How are students like prisoners? What did the plaintiffs in Ingraham want? How did the due process claim advance this? What is the Mathews factors analysis of

paddling? Why does suspension rate more due process

than paddling? Why so little due process for flunking out?

Walters v. National Ass'n of Radiation Survivors

If you do not get appointed counsel, how do you get a lawyer?

What was the limit on fees? How does this affect representation? Why does the VA like this? Was this limit constitutional? Who else helps Veterans

Penalties and Due Process

Van Harken v. City of Chicago – Did away with hearings on tickets to save money

De-Criminalized (only civil fines) the system first – Why?

Core Principle – No incarceration for punishment without criminal due process

What about mental health patients? Quarantined TB patients?

Rulemaking or Adjudication?

Rulemaking - Bimetallic– No individual parties– No right to a hearing

Adjudication - Londoner– Like a trial, in that there are specific parties– Right to a hearing

What if the rule only affects one person?