Confusion of "liberty interests" as it relates to SDP versus PDP

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Cavalier-336

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Confusion of "liberty interests" as it relates to SDP versus PDP

Postby Cavalier-336 » Thu Feb 23, 2017 7:55 pm

I suppose this could have been placed in the students section, but it has some applicability here.

I am focusing on the 14th Amendment's Substantive Due Process (SDP) and Procedural Due Process (PDP) components. I have read Chemerinsky's material but, as you may know, it is a ton of information without an answer being immediately clear.

Chemerinsky remarks that SDP and PDP analysis starts by first asking if there is a government deprivation of life, liberty, or property (top of page 559 in his 4th edition book if that helps).

Yet I thought that any law is subject to a SDP attack. That is, any law is subject to an attack inquiring into the justification for the law (likely a rational basis test).

1. However, if every law is subject to a SDP attack, why is it necessary to first see whether a deprivation occurred? Seems like the deprivation analysis is really only relevant to PDP and not SDP.

Is it due to it likely affecting a citizen's "liberty interest" in not conforming to that law?

2. Do different liberty interests apply to PDP rather than SDP?

For instance, on page 590, Chemerinsky states "The court emphasized that liberty interests are created either by the Bill of Rights or by state law."

But that quote does not seem appropriate for SDP analysis.

Thank you in advance for any help.

sittin_pretty

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Re: Confusion of "liberty interests" as it relates to SDP versus PDP

Postby sittin_pretty » Thu Feb 23, 2017 10:10 pm

PDP does to HOW an interest is deprived: was there sufficient notice, opportunity to be heard, if a benefit is being taken away, for example (the most common scenario.. almost always comes back to notice and opportunity to be heard, and is almost always in the context of some kind of adjudicative process/hearing).

SDP is whether a (life), liberty, or property interest was deprived without adequate government justification. Not every law is a deprivation. Only one that takes away a liberty or property interest. And only fundamental rights/liberty interest deprivations are subject to strict scrutiny, so the vast majority of substantive due process cases involve an initial inquiry into whether the right at issue is a fundamental right. Another key line of cases is the "shocks the conscience" standard that applies to due process challenges to excessive police force & other actions by state agents.

You can have both issues at once implicated when a liberty or property interest is being infringed by the government in the context of an adjudicative hearing.

Hope that helps.

Cavalier-336

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Re: Confusion of "liberty interests" as it relates to SDP versus PDP

Postby Cavalier-336 » Thu Feb 23, 2017 10:38 pm

sittin_pretty wrote:PDP does to HOW an interest is deprived: was there sufficient notice, opportunity to be heard, if a benefit is being taken away, for example (the most common scenario.. almost always comes back to notice and opportunity to be heard, and is almost always in the context of some kind of adjudicative process/hearing).

SDP is whether a (life), liberty, or property interest was deprived without adequate government justification. Not every law is a deprivation. Only one that takes away a liberty or property interest. And only fundamental rights/liberty interest deprivations are subject to strict scrutiny, so the vast majority of substantive due process cases involve an initial inquiry into whether the right at issue is a fundamental right. Another key line of cases is the "shocks the conscience" standard that applies to due process challenges to excessive police force & other actions by state agents.

You can have both issues at once implicated when a liberty or property interest is being infringed by the government in the context of an adjudicative hearing.

Hope that helps.


Thank you so much for your help. I do have a follow-up if you would be so kind.

What was being deprived in Lee Optical?

For the Court to have engaged in a rational basis review of the state law, then, as a threshold requirement, there was a deprivation of liberty or property. It seems it would not have been a property interest, so thus a liberty interest was recognized by the Court.

My argument is that the liberty interest one would articulate for the litigant in Lee Optical for SDP is NOTHING CLOSE to what would be required for a PDP liberty interest.

I say "NOTHING CLOSE" because Roth discussed liberty interests being found under the bill of rights or state law. And if you went with Roth's logic, then the Lee Optical litigant would not even have a liberty interest to bring to table.

sittin_pretty

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Re: Confusion of "liberty interests" as it relates to SDP versus PDP

Postby sittin_pretty » Fri Feb 24, 2017 1:56 am

Cavalier-336 wrote:
sittin_pretty wrote:PDP does to HOW an interest is deprived: was there sufficient notice, opportunity to be heard, if a benefit is being taken away, for example (the most common scenario.. almost always comes back to notice and opportunity to be heard, and is almost always in the context of some kind of adjudicative process/hearing).

SDP is whether a (life), liberty, or property interest was deprived without adequate government justification. Not every law is a deprivation. Only one that takes away a liberty or property interest. And only fundamental rights/liberty interest deprivations are subject to strict scrutiny, so the vast majority of substantive due process cases involve an initial inquiry into whether the right at issue is a fundamental right. Another key line of cases is the "shocks the conscience" standard that applies to due process challenges to excessive police force & other actions by state agents.

You can have both issues at once implicated when a liberty or property interest is being infringed by the government in the context of an adjudicative hearing.

Hope that helps.


Thank you so much for your help. I do have a follow-up if you would be so kind.

What was being deprived in Lee Optical?

For the Court to have engaged in a rational basis review of the state law, then, as a threshold requirement, there was a deprivation of liberty or property. It seems it would not have been a property interest, so thus a liberty interest was recognized by the Court.

My argument is that the liberty interest one would articulate for the litigant in Lee Optical for SDP is NOTHING CLOSE to what would be required for a PDP liberty interest.

I say "NOTHING CLOSE" because Roth discussed liberty interests being found under the bill of rights or state law. And if you went with Roth's logic, then the Lee Optical litigant would not even uhave a liberty interest to bring to table.


Don't get too hung up on Lee Optical. There wasn't a fundamental liberty interest in that case, which is kind of the point. It was a 1955 decision that marked a turning point in substantive due process. The point of the case was that the court emphasized that general challenges to laws are only subject to rational basis generally... then in later cases the Court made it clear strict scrutiny would be applicable to fundamental rights/liberty interests infringements. Recall as well that it wasn't so long ago prior to 1955 that economic rights were considered fundamental rights, in the Lochner era. So that explains why restrictions on business were still being argued as substantive due process cases in 1955. But Lee Optical another nail in the coffin of the Lochner era. All of which is to say that Lee Optical is not important for defining what a liberty interest is. It primarily stands for the fact that without a fundamental liberty interest, only rational basis applies.

Cavalier-336

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Re: Confusion of "liberty interests" as it relates to SDP versus PDP

Postby Cavalier-336 » Fri Feb 24, 2017 11:46 am

Thank you

sittin_pretty

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Re: Confusion of "liberty interests" as it relates to SDP versus PDP

Postby sittin_pretty » Fri Feb 24, 2017 12:01 pm

Cavalier-336 wrote:Thank you


Welcome. I used to teach this stuff for a living and it's definitely one of the less clear parts of Chemerinksy's casebook, so I imagine the BarBri materials are similarly confusing here (I didn't review the BarBri con law materials b/c con law is kinda in my bones already, didn't need to study it after teaching it 3 years and practicing it before that). (I just took the atty's bar exam in Cali is why I'm here)



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