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14 Cards in this Set

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In the COn Law context, what does 'incorporation' mean
it means that a provision of the Bill of RIghts is applicable to eth states through operation of th 14th amendment's Due Process Clause. Originally the Bill ofRIghts was only applicable to the federal gov't ; however, over time most of the provisiosn have been 'incorporated' so as to bind the states as well
Through what provision in the Constitution does a right become 'incorporated' and thus, applicable against the states
The Due Process Clause of the 14th Amendment. Otherwise , a riht is not applicable ot the states because the Bill of Rights in general does not apply to the states
Is the bill of rights as a whole 'incorporated' into the due process clause of the 14th amendmend?
No. THE SC has only made applicable ot the states those provision in the Bill of RIghts it deems essential to the "American scheme of justice. " although this covers most of the Bill of Rights, the Court has refused to 'incorporate' certain provisions, including the tright to a grand jury and the right to bear arms.
REMEMBERING WHICH BILL OF RIGHTS PROVISIONS HAVE BEEN "INCORPORATED"
WHICH ONES HAVEN'T:
1. the 2nd amendment right to bear arms
2. the 5th amend guarantee of a grand jury indictment
3. the seventh amendment guarantee of a jury trial in civil cases
4. the requirement of a 12 member jury
5. the 6th amendmetn right to a unanimous verdict in a crim jury trial
6. the 8th amendment ban on excessive bail

NB: the due process clause incorporates rights beyond those enumerated in the first 8 amendments, including proof in a criminal prosectuion 'beyond a reasonable doubt'
Is there any constitutional provision explicitly limiting private acts by individuals?
13th amendmet, prohibition against slavery is the only one
what does the 14th amendment provide
it provides, among other things, that states cannot deprive any person of life, liberty, or property in the absence of due process of law and equal protection of the law
THere are two gen types of due process problems. what are they
1. Procedural Due Process. THIs addresses the procedural fairness in depriving someone of a significant interest, typically in property, but also in life or liberty (which includes the right to physical freedom, exercising fundamental constituaitional rights, and other forms of freedom of choice or action.) you know ther'es a procedural due process issue in a problem when what's involved are hte mechanical aspects of how someone was deprived of something. IN general, procedural due process problems concern the necessity of Notice and a Hearing when a property right is removed.

2. Substantive due process. THis addresses legislation that intrdues on personal rights; that is, the court's being asked to look at the SUBSTANCE of what the gov't did. If the fright is "fundamental", the statute must pass strict scrutiy test. if it isn't fundamental, the statute is subject to the 'rational relation' test

NB: Both teh fed and state gvt's are subject to due process requirements. The 14th amendment's DP clause applies to the states; the 5th amendmen'ts DP clause appleis to the feds.
How can you tell the diff between a law that raises a due process issue, and one that raises an equal protection issue
see if the'res a classification involved. If tehre is, it's most likely an equal protection problem.
If there's no classification, bu tthe effect of the state's activity amounts to a deprivation of a property interest or right, it's a substantive due process problem. It doesn't matter if the interest is characterized as a 'privilege' or a 'right' . note that, if the law in question regulates economics or social welfare, it's more likley to involve equal protection than due process, because such laws generally involve. classifications (meaning that they don't address everyone even-handedly.

EG- a state statute prohibits sales of contraceptives to anyone. there's no classification involved, but hte statute does intrude on a right (privacy0, so there's a substantive due process problem. Say instead a statute prohibits sales of contraceptives to anyone under the age of 21. now there's a classification; those over 21 and those who aren't, as a result there's an equal protection problem
Procedural due process is requied when one is deprived of life liberty or property. Is 'property' confiend to land or chattels?
NO, it also covers an interset already acquired in specific benefits. For instance, a high scholl studen thas a property interest in his education; welfare recipients have a property interest in continued benefits; drivers have a propert interst in retaining their drivers' licenses.

NB: a person's mere 'expectation' of maintaining benefits (or a job) isn't sufficient to create a property right; the person must have a 'legitimate claim of entitlement' to continued benefits, and this in turn requires a gov't created expectancy, pursuant to applicable law
ANALYZING PROCEDURAL DUE PROCESS PROBLEMS
1. has a gov't action impaired a liberty or property interest? (if not PDP is not an issue. If so, go on to #2)

2. What procedural requirements must be satisfied?
the two principal tools are notice and a hearing. However, they can range from a full, adversarial prior hearting, to a promise of a prompt post-deprivation evidentiary herating , to a notifiaction of charges and an aopportunity to respond. the requirements are determined by weighing: THe importance of the property or liberty interest in question and the risk of an erroneous deprivation in a particular proceudre would create (considering the probable value of any additional safeguards) vs the importance to the gov't of the function in quesiton, and the administrative and fiscal expense of a particular safeguard.

Rationale for PDP: to prevent inaccurate decisions. Where there is little risk of error, the individual will be entitled to correspondingly less procedural protection
Define 'libert' as it relatees to the 5th and 14th amendments
There are basically three categories of freedom: phyiscla freedom, exercising fundamental constitutional rights, and "other' forms of freedom of choice or action
What factors determine the procedural safeguards necessary in depriving someone of a liberty or property interest
Courts employ a balancing test: THe importance of the property or liberty interest in quesiton and the risk an erroneous deprivation in a particular procedure would create (considering the probabl vlaue of any additional safeguards) are weighed against the importance to the gov't of the function in question adn the administrative and fiscal expense of a particular safeguard
Procedural Due Process Requiremenst of Common Problem Areas
1. Welfare benefit termination:
2. disability benefit termination
public employment termination
public school suspension for disciplinary reaons
5. public school suspension foracademic reasons
6. prejudgment garnishment of wages by creditors.
prejudgment seizure of property by creditors:
Drivers license suspension
9. involuntary commitment to mental institution.
10 termination of parental stauts
What's the most common application of proceduraldue process
to people acuse of a crime. that's because people clrealy have a protected liberty interest in their freedom from imprisonment.