Climate Change Project

Table of Contents



Administrative Law, Fall 2004

North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908)

What was the threat to public health and safety?

What did the city want to do that Cold Storage resisted?

What were Cold Storage's claims as to why it was entitled to a hearing before the city could take action?

What did the United States Supreme Court rule about the pre-action hearing?


What due process did the Court provide?

Why wasn't the city's proposed action a taking subject to compensation?

Should this case still be good law?

Part I. Agency Procedures

Chapter 2. The Constitutional Right to a Hearing – 18

What are the key distinction between a pre-action hearing and a post-action review hearing?

When does the constitution favor post-action hearings as opposed to pre-action?

Why not give everyone a hearing every time?

2.1 Hearings and Welfare Termination: Due Process and Mass Justice – 20

Welfare as we knew it - Changed with the 1996 act

What is the general attitude toward people on Welfare?

How was this reflected in the administration of the welfare programs?

What was AFDC and what is it now called?

What does the name change tell you about the change in philosophy?

How does this affect future Goldberg actions?

Why was it the welfare system reformed, i.e., what were the unintended consequences?

Goldberg v. Kelly – 22

What is a statutory entitlement?

How is it different from a constitutional entitlement?

What is the analogy to property?

What is the pre-Goldberg procedure?

Why is this a problem?

What examples does the court give of situations where no hearing is necessary?

What is the down side of a pre-termination hearing?

What does this assume about the number of persons ask for a post-termination hearing?

What is the court's claimed government benefit from more due process - 24

What process do you get under Goldberg?

Do you get a trial?

Appointed counsel?

How does Justice Black explain the ever higher ratcheting of due process?

Why is this a spurious comparison?

Notes and Questions – 29

1. Goldberg

Does the Goldberg analysis provide predictable results in future cases?

Should judges be balancing the government's pocketbook against the rights of the clients?

2 - What are the benefits of trial type hearings?

Is it worth it?

3 How did the costs change post-Goldberg?

4 - Long term consequences?

Better functioning system?

No more welfare?

2.2 Interests Protected by Due Process: Liberty and Property – 33

2.2.1 “Liberty” and “Property” According to Roth – 33

Boards of Regents v Roth – 33

What are the facts?

Why was he fired?

Was there a free speech issue?

Is it before the court?

What process did he want?

What did the district court give him?

What factors did the court examine as regards the harm done to plaintiff by the failure to rehire? 36

How did the court distinguish the District Court analysis?

Note 15 - What does Goldsmith v. Board of Tax Appeals tell us?

Notes and Questions – 38

1 Right - privilege doctrine

Government jobs are no longer seen as a privilege but as qualified rights that have attached due process

Bailey v. US - 1951 - fired for unproven disloyality - tough luck

No longer the law unless the government clearly limits the expectations of the job

3 - all bets are off when "fundamental interests" - abortion, religion are at stake

6 States - CA

What happened in Saleeby v. State Bar?

7 de facto tenure - Perry v. Sinderman

What happened in Sinderman?

What lesson should a university take from Sinderman?

§ 2.2.2 Defining “Property” - 42

Cleveland Board of Education v. Loudermill - 42

This case explores the tension between the state's grant of a property right through statute, and the state's ability to limit that property right.

What was the statutory limitation on firing these employees?

What sort of employment expectation does this create?

Is this enough to create a property right?

What due process did the state provide for these employees who were being fired?

Is this consistent with Sinderman?

How does the State defend its statute?

How are these new property rights really defined through the due process that accompanies them?

What is the "take the bitter with the sweet" theory that the plurality used in Arnett v. Kennedy?

Why does the "bitter with the sweet" undermine the new property?

What did the United States Supreme Court rule about the state's ability to limit due process by statute?

May the state law give more due process than is required by the US Constitution?

May the state require private employers to provide due process to employees being fired?

Notes and Questions - 44

N2 - What is the cost of increased job security for public employees?

What is the traditional trade-off between a public job and a private job?

How can job security for government employees hurt the general public?

What has been the trend for job security in private employment?

What is the cost of reducing job security for public employees?

Discussion Problem 1

Assume you are the state health officer. 

How would limited job security affect your ability to protect the public's health?

What interest groups must you be attuned to?

What is generally the strongest of these in LA?

Discussion Problem 2

How does electing prosecutors affect the way they do their job?

Is the prosecutors job just to get the most convictions as possible?

How does this affect the death row problem?

Would it be better to have career prosecutors?

N4 - Are medical and legal licenses new property?

What due process rights would you expect if the state were revoking your license to practice?

Would you expect the same rights if the state did not let you take the bar exam?

What does this tell you about your conduct before you are licensed?

N5 - Contracts with the government are not property but are just agreements that are governed by contract law.

Due process is not the only remedy for many actions

Unger v. National Residents Matching Program

Failing to admit resident after signing the match contract did not trigger a hearing, but would support a breach of contract action.

N6 - De minimis test

Some deprivations are too insignificant to trigger a right to a hearing

Putting a cop on paid sick leave did not trigger due process

Otherwise the courts will be in every employment action

Discussion Problem

What process is due?

Are you really going to change the principle's mind?

What do you need to at the hearing to help you client keep the job?

The Court of Appeals, Harlington Wood, Jr., Circuit Judge, held that director, who had two-year employment promise, was deprived of legitimate expectation of continued employment when school board voted not to renew his contract for a second year.


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