§ 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
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
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
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
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
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
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.
§ 2.2.3 Defining “Liberty” - 46
Key question - how many rights does a prisoner retain?
This was front page news just this week - the Corrections Department is
being sued for running a really terrible juvenile corrections system. Decent
prisons cost more money to run, so the state has an interest in getting out
of these cases without really changing things for the long term.
State prison cases are mostly filed under 42 USC 1983, alleging that the
state deprived them of their civil rights.
Claims divide into due process claims, such as Sandin, and "cruel
and unusual punishment claims" which generally deal with conditions
of confinement or medical care.
Due process claims require the plaintiff to show that he had a liberty
interest in the proceeding.
Even if the court finds a liberty interest, that just lets the prisoner
Assume you have been hired to develop a new set of prison regulations for
What are the tradeoffs you must deal with?
What happens if prisoners have lots of rights?
What if prisoners have no rights?
How can prisoners assert their rights?
How much latitude should outside lawyers have in asserting rights for prisoners?
Should there be different rules for juvenile prisons?
Sandin v Conner 1995 - 47
What was the punishment?
Is plaintiff claiming it was cruel and unusual?
What is the claim?
What was it about the good time credits at issue in Wolff v. McDonnell
that created a liberty interest?
What did the court hold in Hewitt v. Helms that plaintiff relies on in
How did Hewitt lower the burden for prisoner lawsuits?
What did the prisoners do to fill their empty hours?
What effect did this have on the federal courts?
What did prisons do to avoid these claims of improper procedure?
How did the majority (Rehnquist) opinion limit Hewitt?
What does the plaintiff have to prove to get a Wolff hearing?
What did Conner say was the proper test for whether he got due process?
Notes and Questions - 50
N1 - What rights does a prisoner retain?
Some freedom to exercise religion
Some limited right to communicate with the outside
A little bit of free speech
Quite a bit of bodily integrity
Freedom from beatings and the like through 1983 and state laws.
N2 - Stigma as deprivation of liberty
How would Roth have been different if the university had fired him because
it said he was a terrible teacher?
What did Constantineau find was sufficient stigma as to justify a hearing?
What was the standard in Paul v. Davis?
How did the court distinguish Constantineau?
What did Justice Brennan say this would allow the states to do?
3 - Administrative Investigations
Hannah - No right to cross-examine witnesses in federal hearing to advise
Congress and that do not recommend punishments.
Later limited in Jenkins - required some due process in situations where
the committee was looking for and publishing information about criminal activity
Is the real test in administrative investigations stigma?
What would your claims be on behalf of Anna and what would Madison argue
§2.3 Timing of Trial - Type Hearings - 51
How many claims does SSA decide every year?
How big is the disability system (SSD)?
Why is this important background for Matthews v. Eldridge
Matthews v. Eldridge (1976) - 52
This is a termination of benefits case.
Basic Procedure drill
Get a form the office
What is the illness, the work history, the doc
SSI orders records
A doc at SSI at Disability Determination Service - run by state as contractor
DDS makes a determination
Sends to regional office
Regional office pays, QA, or denies
Ask for reconsideration
This is all done with records
At the state level, the examiner can call the patient's doc
At the fed level the expert cannot
Supposed to be bound by the patient's doc
Most problems arise because of poor documentation
The applicant can always submit additional info and get a new evaluation
Ask for a hearing before ALJ
At the hearing stage, you ask for an expedited review if the case is clear
ALJ's decision is final
How long after Goldberg?
Why does SSD require periodic review of benefits?
When does SSD provide a hearing?
What if the claimant is successful at the hearing?
How long can this take?
Why does the Court find this is less critical than in Goldberg?
Should the ruling be changed if the plaintiff can show that such sources
are no longer available?
What does plaintiff want?
What data is used for making disability determinations?
Who would be the witnesses and how is their information collected?
Does the claimant's testimony matter?
How does this change the equities of Goldberg?
Why is the administrative decisionmaker less prone to make errors in this
case than in Goldberg?
What does this tell us about the cost/benefit calculation on the due process?
Does plaintiff get his pre-termination hearing?
What are the Mathews factors?
How would you apply these factors to other administrative decisions?
Notes and Questions - 61
N1 - Emergencies - Discussed already in North American Cold Storage
N3 - Employment
Court now only requires a probable cause type hearing before firing an
employee, with a trial type hearing later
How much good would such a hearing do?
N4 - How long is too long?
Do delays of a year bother you?
Why do we have such delays?
Strategic value of delay - People give up
What would we have to do to change it?
5 - Suspensions
Greater latitude to suspend without a trial type hearing, but it must follow
Gilbert v. Homar
suspended cop without pay after indictment
objective, verifiable grounds
May suspend without a hearing for public health and safety grounds
Material from Supplement
Add new paragraphs after N.5. P.62.
In American Manufacturers Mutual Insurance
Co. v. Sullivan, 526 U.S. 40 (1999), the Supreme Court appeared to
hold that no due process rights were available to an applicant for benefits
(as distinguished from a person challenging a termination of benefits).
In that case, the Pennsylvania workers' compensation
law entitled an employee to payment of reasonable and necessary medical expenses
arising out of an on-the-job injury. However, if the employer or insurance
company believed that a particular medical procedure was not reasonable and
necessary, it could refuse to pay until the issue was determined through
a hearing procedure. Employees argued that this procedure violated due process
since they should be entitled to a hearing before being deprived of payment
of the benefits (in other words, that the benefits should be paid before
a hearing was provided, not after). The Supreme Court might have disposed
of the case by holding that due process applied but that a post-deprivation
hearing was adequate in the circumstances, as it did in Mathews v. Eldridge, § 2.3.
However, the Court took a different approach. In
Part III of an opinion by Chief Justice Rehnquist, it held that due process
was wholly inapplicable to the decision. It distinguished Goldberg v.
Kelly and Mathews v. Eldridge. "In both cases, an individual's
entitlement to benefits had been established, and the question presented
was whether predeprivation notice and a hearing were required before the
individual's interest in continued payment of benefits could be terminated. Respondent's
property interest in this case, however, is fundamentally different. . .
. [Pennsylvania] law expressly limits an employee's entitlement to 'reasonable'
and 'necessary' medical treatment, and requires that disputes over the reasonableness
and necessity of particular treatment must be resolved before an employer's
obligation to pay—and an employee's entitlement to benefits—arise. . . .
Thus for an employee's property interest in the payment of medical benefits
to attach under state law . . . he must establish that the particular medical
treatment is reasonable and necessary. Only then does the employee's interest
parallel that of the beneficiary of welcome assistance in Goldberg and
the recipient of disability benefits in Mathews. . . To state the
argument is to refute it, for what respondents ask in this case is that insurers
be required to pay for patently unreasonable, unnecessary, and even fraudulent
medical care without any right, under state law, to seek reimbursement from
providers. Unsurprisingly, the Due Process Clause does not require such
Does American Manufacturers Mutual Insurance hold
that due process never applies to an application for benefits? Or
is the holding of the case more limited? Concurring, Justice Ginsburg wrote: "I
join Part III of the Court's opinion on the understanding that the Court
rejects specifically, and only, respondents' demands for constant payment
of each medical bill, within 30 days of receipt, pending determination of
the necessity or reasonableness of the medical treatment. I do not doubt,
however, that due process requires fair procedures for the adjudication of
respondents' claims for workers' compensation benefits, including medical
What did the Pennsylvania law require?
When could the employer withhold payment?
What was the due process claim?
Did the court follow Mathews v. Eldridge and find that a post-deprivation
hearing was the proper remedy?
How did the court distinguish the property interest in this case?
When does the court say the right vests?
Why does that change the due process requirement?
How did justice Ginsburg limit her concurrence?
6 - Problem
Low income housing has one year leases and bounces tenants if they deal
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?