Substantive Due Process Rights Research Articles

Challenges in Substantive Due Process Litigation

This Article presents the results of an empirical examination of litigation involving substantive due process claims. I have compiled a dataset consisting of every case in which a federal appellate court adjudicated a substantive due process claim during the year 2019—a total of 98 cases. This census yields important information about the context in which substantive due process rights are litigated and articulated within our civil rights enforcement scheme. As a threshold matter, I show that 92% of substantive due process cases come to the federal appellate courts as actions brought under 42 U.S.C. § 1983. This information underscores that, for the most part, substantive due process litigation in the federal courts is litigation under Section 1983. As a result, substantive due process litigation is subject to the doctrinal challenges that apply to Section 1983 litigation more generally. This Article takes stock of these challenges and develops an account of the intersection between substantive due process rights and Section 1983 litigation. It considers four challenges for civil rights plaintiffs common to many cases filed under Section 1983: standing to seek injunctive relief, the qualified immunity defense, the policy or custom requirement for municipal liability, and availability of attorneys’ fees under 42 U.S.C. § 1988. Drawing on both quantitative and qualitative information from the dataset, this Article suggests that each of these areas also presents a challenge for plaintiffs seeking to vindicate substantive due process rights. Further, the vagueness and breadth of many substantive due process rights compounds the challenges presented by Section 1983 litigation in other contexts. This Article concludes by briefly considering the implications of its findings for lawyers, courts, and future researchers.

The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization

The U.S. Supreme Court’s reasoning in Dobbs v. Jackson Women’s Health Organization cannot be taken seriously. The Court’s stated ra-tionale for rejecting continued protection of the abortion right—that abortion is not deeply rooted in nineteenth century history and tradi-tion—applies with equal force to other substantive due process rights that the Dobbs Court repeatedly insisted were not under threat even without considering stare decisis, including contraception, sexual inti-macy between consenting adults, and same-sex marriage. One should add inter-racial marriage and protection from involuntary sterilization to that list. Rather than applying its draconian version of the “history and tradition” test in a principled fashion, the Court decided the case based upon moral opposition to abortion and a failure to appreciate that abortion bans old and new are also shaped by gender bias, not just by concerns for fetal life. Further evidence for this realist account of the Court’s decision can be found in the Dobbs Court’s disregard of self-restraint both procedurally and in the opinion-writing process. It is not going too far to charge the Court with having acted lawlessly. A future Court will readily be able to explain why it is overruling Dobbs.

Secrecy and Transparency in Substantive Due Process Litigation

A few years before the recomposed Court rejected abortion rights in Dobbs, it sustained several healthcare providers’ challenge to Louisiana abortion restrictions in June Medical. History will remember that 5–4 decision mostly as one of the last major cases to interpret and apply the Casey framework. But in the little-noticed background of the June Medical litigation, a significant dispute over sealed court records boiled over. On one side, plaintiff physicians sought anonymity and confidentiality in light of potential threats to their physical safety and patient privacy. On the other side, Louisiana asserted the public’s longstanding right to access court records and its own right to include information from June Medical companion cases in its Supreme Court briefing. Ultimately, the Fifth Circuit agreed with Louisiana, vacating the sealing order. June Medical evokes a larger dispute simmering in federal and state courts over public access to litigation information. Modern commerce and contemporary life generate an unprecedented volume of data. American civil discovery provides litigants with tools to discover and collect much of it. And courts have long recognized the public’s First Amendment and common law rights to inspect and copy public court files. Moreover, the internet and advent of electronic filing have transformed once obscure paper court files into easily accessible databases. Proponents of expanded sealing and secrecy contend that this status quo threatens litigants’ privacy and intellectual property. Proponents of more transparency posit that public access to the evidence underlying court action is essential to the integrity and proper functioning of the judiciary, as well as to public health and safety. This Article examines a largely unexplored angle of this debate: How should courts treat the unique privacy interests of litigants asserting substantive due process claims in the context of the public’s right to access litigation information? Part II explains the public’s court-access rights. Part III first considers whether forced identity revelation might infringe substantive due process rights. After concluding that infringement is possible, but recognizing that courts will often avoid the constitutional privacy questions posed by these scenarios, Part III goes on to consider the use and effects of subconstitutional privacy and access principles in rights cases where parties seek to proceed pseudonymously.

Right to Counsel in Civil Cases: Protector (and Source?) of Substantive Due Process Rights

Right to Counsel in Civil Cases: Protector (and Source?) of Substantive Due Process Rights

Dobbs v. Jackson and the Revival of the States' Rights Constitution

AbstractThe US Supreme Court's decision in Dobbs v. Jackson Women's Health ended the federal right to an abortion, first pronounced in the 1973 case Roe v. Wade. Dobbs has immediate implications for American women, but it also exposes a growing hostility by the court to the doctrine of ‘substantive due process’ on which many other federal rights rely. This article argues that the court's weakening of substantive due process is a direct challenge to the constitutional transformation wrought by the Fourteenth Amendment following the Civil War. The amendment asserted a national standard of fundamental rights, profoundly rebalancing power away from the states. Should the Supreme Court extend the logic of Dobbs, the national basis for many substantive due process rights will be removed. The court is reviving a kind of states' rights constitutional thinking hitherto unseen by the current generation of Americans.

State-Created Environmental Dangers and Substantive Due Process

This Article focuses on the litigation arising out of contaminated drinking water in Flint, Michigan, lead paint in public housing in New York City, and harms to young people from the impacts of climate change. At the heart of each case is a claim that state officials violated the plaintiffs’ substantive due process rights by creating or enhancing an environmental danger and then deliberately failing to mitigate the risk to the plaintiffs. Although the plaintiffs characterize their claims in similar fashion, the three cases are not likely to enjoy the same success as they move through the courts. The scholarly commentary thus far does not offer satisfying answers to why plaintiffs might state a claim against officials for contaminated drinking water but not for an unstable climate. Although these cases involve novel applications of substantive due process doctrine, scholars have yet to examine exactly if and how they depart from other substantive due process cases. To fill this gap in the literature, this Article seeks to situate these cases in existing doctrine. In doing so, it exposes doctrinal confusion regarding which standards and tests apply to state-created danger claims. In addition, to provide courts with necessary guidance, the Article proposes a framework for state-created danger claims, limited by established common law principles and grounded in the important distinction between challenges to official misconduct and challenges to governmental law or policy.

Ending School Brutality

Children, especially Black children, are killed, traumatized, injured, and terrorized through assaults, solitary confinement, inappropriate handcuffing, and other excessive applications of physical force upon children in public schools. The state employees enacting such maltreatment are not just police. They are mainly teachers, principals, and security guards, and they are given authorization by law for purposes of “educating,” “disciplining,” and “maintaining order” in public schools. Scientific research does not support the use of physical force to improve behavior, however. This article describes the problem of school brutality, the excessive, unwarranted, and traumatizing use of physical force by state employees upon students. By traumatizing children, school brutality can cause lasting and disabling developmental and educational harm. School brutality is facilitated by multiple legal structures, including a tort law privilege rooted in colonial times; an inconsistent patchwork of state laws permitting seclusion, restraint, and corporal punishment; qualified immunity; lack of regulation of police officers’ actions in schools; federal funding for regular police presence in public schools; and lack of enforcement and review of reporting on school brutality. Substantive due process rights under the Fourteenth Amendment, originally framed to protect adult criminal suspects, are inadequate for children. Unless state employees become less shielded from civil and criminal actions that seek to hold them accountable for school brutality, new private rights of action are needed. State and federal legislators can save lives and support educational achievement by ending the legalization of school brutality.

Prolonged Pretrial Detention Violates Fourteenth Amendment

In State v. Hand , 429 P.3d 502 (Wash. 2018), the Supreme Court of Washington considered whether an individual's substantive due process rights under the Fourteenth Amendment were violated as the result of a prolonged period of detainment while awaiting competency restoration treatment. They also

Vaccination or Termination: The Issue of Mandatory Influenza Vaccinations for Healthcare Workers

Abstract Today, arguably the most common assertion against mandatory vaccinations comes from parents using the Due Process Clause to challenge mandatory vaccinations, claiming the mandates violate their children’s substantive due process rights. Ordinarily, schools allow certain exemptions to tenderly avoid violating the children’s constitutional rights. Many children may have parents advocating for their exemption from these vaccinations, but what about those who have less sway in an argument for exemption? What is at stake for children is their admission into a specific school, and even if they are denied admittance, their parents always have the option to homeschool them if they truly feel so passionately against mandatory vaccinations. However, a healthcare worker who is seeking employment, or who is already employed, does not have as much sway or alternatives when it comes to opposing a mandatory immunization policy. Employers have begun implementing mandatory influenza immunization programs, but even the employers who grant accommodations exempting certain healthcare employees impose some form of additional infection-control practice (e.g. requiring exempt healthcare workers to wear facemasks while on duty, wear different color badges, or placing them in alternative positions during flu season). These mandatory influenza immunization programs, and the alternatives required if healthcare workers acquire exemptions, strike a critical balance between the workers’ constitutional rights and the overarching public safety issues.

'On Desolation Row': The Blurring of the Borders Between Civil and Criminal Mental Disability Law, and What It Means For All of Us

One of the great tensions of mental disability law is the unresolved, trompe d’oeil question of whether it is a subset of the civil law, of the criminal law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental disability law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental disability law-decision making. As mental disability law has matured, a dual system appeared to have fallen into place: in civil cases, a patient was generally entitled to a relatively broad panoply of procedural and substantive due process rights in involuntary civil commitment and institutional rights decision making; on the other hand, the Supreme Court has made it explicit that defendants convicted of crimes would have fewer substantive treatment rights, specifying that at least in the area of the right to refuse treatment, “penological interests” would “trump” fundamental civil libertarian interests, and that insanity acquittees could have fewer substantive and procedural due process rights at retention and review hearings than would civil patients. Yet, subsequent important developments cast new light on this separation and call into question the future of a two-tiered mental disability law system: • the proliferation of so-called assisted outpatient treatment (AOT) statutes, of which New York’s Kendra’s Law is the most well-known example; • the expansion of sexually violent predator acts (SVPA), of which New Jersey’s Megan’s Law is often seen as the exemplar but which have been subject to Supreme Court scrutiny in cases from other jurisdictions such as Kansas v. Hendricks, Seling v. Young, Crane v. Kansas, and United States v. Comstock, • the policy implications of a system that provides no meaningful continuity of care, resulting in large numbers of persons continually “shuttling” between jails (or prisons) and mental hospitals, • and the sanctioning of the imprisonment of insanity acquittees in prison facilities. These overlaps blur the borderline between civil and criminal mental disability law in very troubling and problematic ways, and threaten to make this area of the law even more pretextual than it currently is. Laws such as these enforce social control in punitive ways under the guise of the beneficence of civil commitment. Although the universes of individuals subject to statutes such as Kendra’s Law or Megan’s Law, those who are shuttled from jail to hospitals to the street for minor crimes, or those who have been found not guilty by reason of insanity appear quite different – in the first instance, persons not subject to the inpatient involuntary civil commitment power but who may be in danger of deterioration in the absence of forced treatment; in the second, persons who have been charged and/or convicted of violent sexual offenses who are targeted as potentially recidivistic pedophiles; in the third, persons charged with crimes that basically involve “nuisance activities,” and, in the fourth, individuals who have been found not responsible for the antecedent criminal action – there are important, and troubling, points in common in the structures of these kinds of laws. Moreover, they all demonstrate comfort with a system in which many functions of civil and criminal mental disability law merge. Remarkably, until now, virtually no attention has been paid to this phenomenon. In this paper, we will first trace the development of the two-tiered mental disability law system (with a special focus on the right to refuse treatment). We will then review developments in AOT law (focusing on Kendra’s Law), SVPA law, continuity of care issues, and the imprisonment of insanity acquittees, and the blurring effects of each area and implications for the rest of mental disability law. We will next discuss those “blur” areas that may serve to, optimally, limit pretextuality (the creation and expansion of mental health courts, and the application of the Americans with Disabilities Act to cases arising out of the criminal justice system). We will then look at these issues from the perspectives of therapeutic jurisprudence, and then conclude with some modest recommendations.

A New Deal for Europe? The Commerce Clause as the Solution to Tax Discrimination and Double Taxation in the European Union

The European Court of Justice’s decision in Kerckhaert-Morress, allowing double taxation of the same income, leads to stagnation in the European internal market. Over the past thirteen years, reservation of competences to member states has created a tension between the European Community’s goal of a common internal market and the goal to eliminate double taxation. By exploring and comparing and contrasting the Constitutional basis for taxation in the US and the Treaty basis for taxation in the European Union, one finds how American New Deal Legislation in the 1930s as a move from Lochner Era could be the basis for an analogous move from Kerckharet-Morress to a European New Deal. The common understanding of the evolutionary change which took place between the “Lochner” Era and the New Deal pictures a reversal of decades of judicial intervention to prevent states from enacting economic regulation, by reference to “substantive due process rights” under the commerce clause, to a judicial policy to approve all economic regulations based on a completely different reading of the U.S. Constitution’s commerce clause. As The New Deal in the 1930s brought the US out of the Lochner Era, a similar New Deal should be conducted in the European Union bringing the EU out of the Kerckhaert-Morress era. Either the EU should adopt a true federal system — akin to that of the United States — or it should not pretend to have a Hamiltonian system (indeed it does not pretend to have a “Hamiltonian” system) or avoid the issues of fiscal coherence all together for a non-common market. The Lochner style Kercharet-Morress era hurts the unity of the “federal” system of the European Union. There are markers of a federal system of finance, such as a national bank — the EU Bank. But a common codified system of taxation — such as the 1916 Constitutional Amendment or the United States Commerce Clause — perhaps through a directive or new multi-lateral treaty negotiation amongst the states could lead to such a system.

State Mandated Vaccinations: Truly Harmless Endeavor or Violation of Substantive Due Process Rights?

This paper examines the nature of substantive due process rights and other important considerations regarding mandatory vaccination laws. It argues in favor of philosophical exemptions predicated on informed consent requirements.

Ultra Vires Land Use Regulations: A Special Case in Substantive Due Process

The U.S. Supreme Court's land use jurisprudence establishes that arbitrary land use regulations violate the doctrine of substantive due process. Ultra vires land use regulations – those regulations that exceed the delegated authority of the regulating agency under state law – represent a particular type of arbitrary land use regulation. Lower federal courts that have examined such regulations are split on the question whether they violate substantive due process. This article contrasts two federal Court of Appeals cases in which property owners alleged that a local government agency deprived them of property without due process of law by enforcing an ultra vires land use regulation against them. The article concludes that, consistent with Supreme Court precedent, ultra vires land use regulations must violate the substantive due process rights of the individuals whom they affect.

Return Economic Substantive Due Process Rights: A Challenge to the Individual Mandate Using the Commerce Clause

The Individual Mandate of the PPACA has brought new light to the concerns of right to freedom of contract. This paper provides a brief description of PPACA and the individual mandate provision which provides the basis for the legal arguments for and against it. Then each side of the argument is discussed using case law and academic opinions. At the heart of this paper is a call to the Supreme Court to return Lochner Era principles and the freedom to contract, highlighting why this case is the perfect opportunity for the court.

Hitting a Miss?

EVENTH-GRADE special education student Justin R. moved to Mystic, Connecticut, with his family in November 2000. His parents enrolled him at Mystic Middle School, which implemented his IEP (individualized education program) without notable problems. However, soon after Justin started school, many other students started harassing him. The harassment did not include physical threats or assaults. Instead, it consisted mostly of calling Justin names, such as fag and homo. Justin reported the bullying to the principal, Susan Dumas, who reprimanded one of the students Justin identified as a harasser. Nevertheless, the harassment continued. On 26 February 2001, a janitor at the school found Justin's geography book. On the cover, Justin had written, Hit list--Katy Y. When principal Dumas confronted Justin, he admitted to writing the words and explained that he wanted to punch, not kill, Katy because she had harassed him. After explaining to Justin and his parents that a is unacceptable, the principal suspended Justin for 10 days. She also convened an emergency meeting of the IEP team, which included Justin's parents, to determine whether his IEP needed to be revised. The team decided to require Justin to see a psychiatrist, Dr. Ken Selig, before he could return to school. Dr. Selig recommended that Justin remain out of school for the rest of the school year. In August 2001, he further recommended that Justin not return to the school in the fall. As a result, the district provided Justin with a tutor for homebound instruction until June of his eighth-grade year and arranged for his placement in a neighboring district's secondary school for the following year. According to Justin, the principal told two of the secretaries in the middle school office about his situation. (1) Justin claimed that the principal also informed Katy that she was on an asshole that Justin had created on his home computer.2 Afterward, rumors circulated around the school, erroneously reporting that the principal had had Justin removed from school in a strait-jacket and that he had attempted to stab her with a letter opener. A parent of one of the other students telephoned Justin's mother and asked her whether it was true that Justin had made a of fellow students. During that time, Justin communicated with a female student through instant messaging. The communication included the following exchange: [Female Student] well I know I was on ur a hole list [Justin] there wans'nt a list. See RUMORS, GOSSIP thast all you seem to be good for [Female Student] mrs. dumas pulled me aside and she told me one day that I was not on a hit list and I was in no danger but I was on ur a hole list [Justin] well lies that is what u seem to be good for also [Female Student] bc u just said there was no list and mrs. dumas told me there was a list On 13 March 2002, Justin's parents filed suit on his behalf in federal court, claiming that the principal and other district officials had violated his 14th Amendment procedural and substantive due process rights. With regard to substantive due process, the claims were that the defendants failed to respond to the bullying and that they disclosed personal information, which amounted to an invasion of privacy. On 17 November 2006, the federal magistrate judge granted the principal's motion for summary judgment.3 The judge first disposed of the procedural due process claim, concluding that plaintiff received all the process that was due him under the 14th Amendment. Second, for the bullying claim under the 14th Amendment, the judge observed that in the public school context the shocks the conscience test applies and that the principal's reaction to the peer harassment was not, as a matter of law, 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. …

Zoning and Anti-Semitism in the 1920s: The Case of Cleveland Jewish Orphan Home v. Village of University Heights and Its Aftermath

In 1925, a Cleveland, Ohio, Jewish orphanage brought the first federal lawsuit involving zoning and religious discrimination. The case was Cleveland Jewish Orphan Home v. Village of University Heights. It is historically significant because it documents how federal courts treated a local government’s application of its zoning regulations for anti-Semitic purposes, the darker side of American land-use controls. This article describes the controversy over the proposed relocation of the home from the city of Cleveland to the village of University Heights, a then-small community of five hundred, and the Village’s decision to deny the necessary zoning approval. It follows the litigation through the federal district court, the U.S. Sixth Circuit Court of Appeals, and the U.S. Supreme Court. The article chronicles the village’s continuing efforts to impede construction of the home by blocking the provision of a public school for the orphans after it had lost the federal case. It concludes with a commentary on the broader themes of the litigation, including its importance to planning law as an early recognition of the arbitrary and exclusionary dimensions of zoning, particularly as it affected the substantive due process rights of a religious-based social service organization.

The Challenge of Due Process, 1983, and Property Rights

This outline is intended to be a basic primer on some of the issues that surround that application of the Due Process Clause to local land use decision making. Many courts are reluctant to use the Due Process Clause to protect property and economic rights. This reluctance stems, in part, from a fear of judicial activism - at least in the post Carolene Products world where social rights are seen to be in greater need of judicial protection than economic rights. After procedural due process protections were extended to new property or entitlements, the United States Supreme Court cabined this expansion in Roth v. Board of Regents by confining it to new property that had a legitimate claim of entitlement. While this limitation of due process for new property was not targeted to the application of due process to old or real property, a number of state and lower courts have since held that neither procedural or substantive due process rights attach to interests in real property unless those interests are already vested under state law. This trend is contrary to the core function of the due process clause to protect rights in property and begs the question of how property rights can become vested in a regime devoid of due process. The reluctance of courts, especially federal courts, to second-guess local land use decision-making is a substantial hurdle to the use of the Due Process Clause to reverse unfair local land use processes. This paper also summarizes briefly the law of procedural due process as it relates to land use. The application of substantive due process to land use decisions - when that doctrine is available - is fraught with inconsistency across and even within various appellate jurisdictions. There is no coherent understanding or application of a consistent theory of substantive due process in the circuit and state courts. Moreover, the standard of substantive due process review for land use decisions varies wildly from arbitrary and capricious to shocks the conscience, the latter standard being more appropriate to deprivations of liberty in the context of law enforcement than for local land use decision making. Finally, this outline touches briefly on the application of the Equal Protection Clause to local land use decision making.

The Constitutional Convention of 1937: The Original Meaning of the New Jurisprudential Deal

The Constitutional Convention of 1937: The Original Meaning of the New Jurisprudential Deal

Statutory Rape Law and Enforcement in the Wake of Welfare Reform

The recent national efforts at reforming the welfare system and new research on the connection between teen pregnancy and statutory rape have led many states to enact stricter laws against statutory rape and to increase the enforcement of existing laws. Punitive statutory rape laws are being viewed more and more as a mechanism for shrinking the welfare rolls by reducing teen pregnancy. Rigel Oliveri documents the resurgence of statutory rape law and enforcement and explores the ramifications it will have on teen parents. In particular Oliveri approaches the issue from several analytical frameworks discussing arguments for consent-based standards the privacy and substantive due process rights of both teens and offenders and the practical needs of parenting teens. She also examines some of the theoretical tensions and pitfalls inherent in the criminal prosecution of teen pregnancies. This discussion leads to suggestions for possible improvements in the prosecution of statutory rape cases as well as to the more radical proposal to eliminate many statutory rape laws altogether. (authors)

THE SUBSTANTIVE DUE PROCESS RIGHTS OF COLLEGE AND UNIVERSITY FACULTY

American Business Law JournalVolume 28, Issue 4 p. 567-604 THE SUBSTANTIVE DUE PROCESS RIGHTS OF COLLEGE AND UNIVERSITY FACULTY MICHAEL J. PHILLIPS, MICHAEL J. PHILLIPS Professor of Business Law, Indiana University. The research underlying this article was assisted by a grant from the Eli Lilly and Comapny Fund for Research in Human Resources Management.Search for more papers by this author MICHAEL J. PHILLIPS, MICHAEL J. PHILLIPS Professor of Business Law, Indiana University. The research underlying this article was assisted by a grant from the Eli Lilly and Comapny Fund for Research in Human Resources Management.Search for more papers by this author First published: December 1991 https://doi.org/10.1111/j.1744-1714.1990.tb01520.xCitations: 4Read the full textAboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume28, Issue4December 1991Pages 567-604 RelatedInformation