Saturday, October 12, 2013

Procedural Due Process

The following question was e-mailed to me by a reader of the blog:

"I have a good handle on the procedural due process, but I have a tough time memorizing which process is required for each violation. Do you have any suggestions on how to approach this?"


It's true that the number of potential interests (liberty and property) that might be violated is large and so rather than attempting to memorize the specific interests, it's probably best to understand the rule that is used to determine which process is required, and then apply that rule to whatever interest is provided in a given question. Memorizing the most common violations (such as committing a person to a mental institution, or terminating a person's welfare benefits) can certainly be beneficial if a question happens to address those specific situations, but as a backup, definitely understand the following rule:

The type and extent of required procedures for violations of an interest are determined by balancing the following three factors:

(1): The importance of the interest to the individual: The greater the importance of the interest, the higher the burden that will be placed on the government to provide procedures that will safeguard that interest.

(2): The value of specific procedural safeguards to that interest: The higher the value, the more likely that such procedural safeguards will be required before a person's interest is terminated.

(3): The government interest in fiscal and administrative efficiency: This third factor should be balanced against the previous two. Some procedural safeguards will put such a burden on the government that they will hamper the ability of the government to function efficiently. The greater the burden to the government, the less likely it is that such safeguards will be required.

If you are given a question on the MBE and you do not recall the process required when a specific interest is violated, use the above rule to guide you in determining the process required.

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