2 - The Protection of Individual Rights: Legal Theory

Abstract

This chapter discusses those individual disputes in which an agency decides that a particular person is not entitled to a service and the person disagrees or where the agency imposes conditions that the individual thinks are illegal. Such individual disputes must be distinguished from discretionary decisions that have a broader impact, for example, a decision by a state not to use Title XX money for a specific service or a decision that only certain services will be offered in particular areas of the states or a decision that different eligibility rules will apply in different parts of a state. Due process clause is the way of governmental decision making. The eight major elements of procedural due process are listed, but there are neither clear rules to determine as to which apply to a given situation nor the extent to which any one applies. In addition, the distinction between procedure and substance takes on added importance when one considers the nature of so-called legal rights to social benefits. In the discussion of the expansion of the Due Process Clause, it is noted that the courts have expanded the number of interests—that is, rights—that are legally protectable under the Constitution and the governing statutes. The chapter discusses what is meant by legal rights.