SUBSTANTIVE DUE PROCESS

Question 1

CONSTITUTIONAL SOURCE—TWO CLAUSES

Answer 1

• 2 separate clauses protecting substantive due process:

(1) DPC of 5th Amend (fed gov); and
(2) DPC of 14th Amend (state & local govs).
- As indicated above, same tests are employed under each clause.

Question 2

APPLICABLE STANDARDS: Fundamental Right—Strict Scrutiny

Answer 2

• Where a law limits a fundamental right, strict scrutiny will be applied, & the law (or other governmental action) will be upheld only if gov can prove action is necessary to promote a compelling/ overriding interest.
• Fundamental rights include:
  (1) Right to travel;
  (2) Privacy;
  (3) Voting; and
  (4) All First Amendment rights.

Question 3

All Other Cases—Mere Rationality

Answer 3

• All other cases: rationality test
• Law will be upheld unless challenger can prove action is not rationally related to any conceivable legit end of gov.
• Examples include the following

Question 4

Business and Labor Regulations

Answer 4

• Ct will sustain all varieties of business regulation;
• exs. “blue sky” laws, bank controls, insurance regulation, price & wage controls, unfair competition & trade practice controls, etc.

Question 5

Taxation

Answer 5

• Taxation: invariably sustained.
• However, discriminatory taxes might still be invalidated.

Question 6

Lifestyle

Answer 6

• SC will uphold laws: prohibiting drugs (“hard”/“soft”), requiring motorcyclists to wear helmets, or requiring police officers to have short hair.

Question 7

Zoning

Answer 7

• Regulation of ownership/use of property has also been liberally tolerated

Question 8

Statutes Forbidding Nuisances or Promoting Community’s Preferred Lifestyle

Answer 8

• Statutes forbidding certain uses as nuisances have been sustained, as have all kinds of statutes designed to promote public’s enjoyment of space & safety/to promote a community’s preferred lifestyle & character.
• For example, SC held that a Long Island suburb could zone out all groups of 3/more persons unrelated by blood, adoption, or marriage.

Question 9

Cannot Prohibit Traditionally Related Families from Living Together

Answer 9

• However, zoning regulations that prohibit members of traditional families from living together (i.e., zoning excluding cousins/grandchildren) violate due process

Question 10

Punitive Damages

Answer 10

• Punitive damages do not necessarily violate due process.
• However, “grossly excessive” damages—those that are unreasonably high to vindicate state’s interest in punishment—are invalid.

Question 11

Factors Considered

Answer 11

• In assessing whether punitive damages violate due process, key issue is whether D had fair notice of the possible magnitude of punitive damages.
• In assessing such notice, the Ct will look to:
  (1) The reprehensibility of D’s conduct (whether D caused physical harm rather than merely economic harm, whether D acted w/ reckless disregard for harm, whether conduct was repeated rather than isolated, & whether harm resulted from intentional malice/deceit rather than from accident);
  (2) The disparity between actual/potential harm suffered by P & the punitive award; and
  (3) The difference between punitive damages award & the criminal/civil penalties authorized for comparable misconduct.

Question 12

Rule of Thumb

Answer 12

• Except for particularly egregious conduct—especially when the conduct resulted in only a small amount of compensatory damages—punitive damages should not exceed 9x the compensatory damages.
• Rx. punitive damages of 145x compensatory damages violate due process

Question 13

Compare—Vagueness Doctrine

Answer 13

• Under DPC of 14th Amend, a law can be held unconstitutional if it fails to provide minimal guidelines to govern law enforcement officers so as to discourage arbitrary & discriminatory enforcement
• Ex. holding unconstitutional on vagueness grounds an ordinance that allowed officers to disperse suspected gang members when they were “loitering,” which was defined as remaining in any one place w/ no apparent purpose

Question 14

A FEW IRREBUTTABLE PRESUMPTIONS MAY BE INVALID

Answer 14

• If gov “presumes facts” against a person so that she is not qualified for some important benefit/right, the irrebuttable presumption may be unconstitutional.
• Although Ct often characterizes this as a due process question, it is more accurately an equal protection question b/c gov is creating an arbitrary classification.
• In any case, if the presumption affects a fundamental right (ex. right to travel) or a suspect or quasi-suspect classification (ex. gender), it will likely be invalid under strict scrutiny/intermediate scrutiny analysis, b/c the administrative convenience created by the presumption is not an important enough interest to justify the burden on the right/class.
• If some other classification/right is involved, the presumption will likely be upheld under the rational basis standard.

Question 15

FAIR NOTICE

Answer 15

• Laws that regulate people/entities must give fair notice of conduct that is forbidden/required.
• A regulation that fails to give fair notice violates DPC