What process is due?
–need entitlementto get due process
-Board of Regents of State Colleges v. Roth (1972) : not being rehired as professor does not implicate liberty or property interest so no need for hearing
-Dissent (Marshall): giving reasons not burdensome and safeguard against arbitrariness ? Mashaw approach – always give a reason (e.g., not admitted to college b/c more qualified applicants)
-Perry v. Seiderman (1972) : remand to determine if informal tenure creates entitlement
-JM – any interest should automatically be considered issue of life, liberty or property and govt. should always have to give a reason (modest process)
-Q1: Have you asserted claim about which hearing would be relevant?
-Q2: How significant is claim given cost of providing process to defend it? (e.g., school admission is important but difficult to keep process same without hearing)
-interpretations when statute outlines process
-legislature defines entitlements ? whatever process provided in statute is what’s due (Rehnquist dissent to Loudermill)
-“bitter with the sweet” approach
-bifurcated process – substantive provisions create interest and Constitution determines process (Cleveland Bd. of Educ. v. Loudermill (1985) – get hearing so chance to respond before terminated for cause)
-JM – but need theory about what due process clause about
-SC vacillates between two in determining if statutes create entitlements
-entitlements only things that change your position conclusively (e.g., prison cases)
-defer to administrative concerns (See Goss v. Lopez (1975) – pre-suspension hearing but procedures defer to concerns of school administrators)
-Goldberg v. Kelly (1970) : due process requires welfare recipient be afforded hearing before termination
-notice, opportunity to be heard, confront witnesses, attorney if desires
-CURRENT TEST – Mathews v. Eldridge (1976)  – cost benefit analysis
-no evidentiary hearing before termination of disability benefits
-private interest
-how measured? just money?
-risk of error
-government’s interest (public interest and admin burden)
-JM – three problems with Mathews
-no attention paid to process values – sole purpose of procedure is enhancing accuracy
-lack of participation causes alienation and loss of dignity
-predicated on fact that social value is impossible to measure
-balancing analysis is insufficient to protect due process rights
-Hamdi v. Rumsfeld (2004): detention authorized but due process requires meaningful opportunity for enemy combatants to contest detention
-used Mathews-esque reasoning
-neutral decision-maker
-notice of classification
-Other approaches – not what court does
-tradition – what is normally due?
-natural law – does this produce fundamental fairness?