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Administrative Law

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?.

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Administrative Law

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  1. Administrative Law Chapter 2

  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?

  3. 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?

  4. 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

  5. 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?

  6. 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

  7. 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?

  8. 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?

  9. 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?

  10. 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?

  11. 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?

  12. 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?

  13. 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

  14. 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?

  15. 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?

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