1. Chapter 4 - Adjudications
Whatever disagreement there may be as to the scope of the phrase “due process of law,” there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard. —Oliver Wendell Holmes, Frank v. Mangum, 237 U.S. 309, 347 (1915)

2. Substantive Due Process
Substantive Due Process refers to the limits on what government can regulate
Federal - commerce clause, national security powers, foreign affairs,
State - police powers v. privacy (abortion)
Important in the early days of the court before the modern expansive reading of the commerce clause
Might be important again, depending on the whims of the United States Supreme Court judges.

3. Modern Substantive Due Process
Substantive Due Process is a limited concept in modern supreme court jurisprudence
But a controversial one
The Affordable Care Act raised hard questions, but survived.
Even when there are constitutional limits, the court generally allows significant regulation
There may be a right to an abortion, but the state can regulate health and safety aspects of abortion clinics.
There may be a right to own a gun, but the state can regulate carrying the gun - probably.

4. Procedural Due Process
Procedural due process refers to the procedures by which government may affect the rights of an individual in a specific situation
Procedural due process arises through adjudications and other proceeding that affect individuals or a small group of persons based on the specific factual determinations
There is no procedural due process right in legislation
What is your appeal for legislation?

5. Why Administrative Due Process is Not Liberal or Conservative
Conservatives
Want the little man (and the rich man) to be fairly treated by the government, i.e., to be able to resist regulation
Liberals
Want the individual to get lots of due process, and cannot exclude corporations.
Both think the government losing against individuals is good, unless it is an area they want to regulate.

6. History of Due Process
The constitution mostly did not apply to the states
The 14th amendment was eventually used to apply the constitution to the states
Many of the criminal due process protections we take for granted stem from the Warren Court and cases decided in the 1950s and 1960s.
Criminal due process was developed earlier than administrative due process
The current cutting edge of due process is transforming criminal due process into administrative, as with terrorist detainees

7. Takings Review What is a traditional property "taking"?
What due process is involved?
What about compensation?
How is compensation measured?
Why is traditional takings jurisprudence much older than individual rights jurisprudence?

8. Regulatory Takings What is a regulatory taking?
Why are these a hot topic in land use?
What are the consequences of forcing the state to pay for any diminished value caused by regulation?
Should the owner pay the state if regulation enhances property values?
Zoning?
Right of reclamation in LA?

9. Accidental Deprivations
Assume the postman runs over your dog or the forest service accidentally burns down your home
Have you suffered a taking?
Are these due process deprivations?
If so, how could the government provide due process?
(We cover these in the tort claims act section.)
What if the government repeatedly “forgets” to give mental patients a hearing before committing them?
Is this different?

10. Rights v. Privileges - History
In 1940 a city fires a policeman because the police chief heard a rumor that the policeman had accepted free coffee and doughnuts from a shop on his beat.
Due process violation?
Did not need to provide due process for not granting or for terminating a government benefit
Government benefits were construed broadly - going to a state college
You could condition these with restrictions that would otherwise be impermissible
Bitter with the Sweet Doctrine

11. Realities of Regulation
The rule of agencies
Agencies can do effective regulation
Agencies can give extensive due process to regulated parties
Agencies can be cheap
Agencies can work quickly
PICK 2, at most

12. Goldberg v. Kelly, 397 U.S. 254 (1970)
What process is due for the termination of welfare benefits?
The last gasp of liberal united states supreme court due process jurisprudence.
Goldberg sets up Matthews v. Eldridge.

13. Learning Objectives
Learn how the status of the affected persons can change the nature of the due process needed for fundamental fairness
Learn how increasing due process rights can have unintended consequences in a program with limited resources

14. Statutory Entitlements
What makes a benefit an entitlement that triggers due process?

15. Matrix Regulation Test 1 Test 2 Claimant Status
Income less than $3000 for family of 2
Income less than $6000 for family of 4 x
Assets less than $2000
Head of household is disabled

16. The pre-1996 Welfare System
What was/is the general attitude toward people on welfare?
What was AFDC?
Aid for families with dependent children.
What were believed to be the unintended consequences of the welfare system?
Daniel P. Moynihan’s Benign Neglect Memo to President Nixon.

17. Supreme Court Context Warren Court
What was the jurisprudential shift on the United States Supreme Court in the 1950s and 1960s?
What has been the trend of the court since the Warren Court?
How does this compare with the court's history?

18. Facts of the Case What state did this case arise in?
AFDC is a federal program: What was the role of the state?
What was the economic status of plaintiffs?
How does this complicate their effectively asserting their legal rights?
Why did this result in the right to appointed counsel for indigent criminal defendants?

19. Pre-Goldberg: Post vs Pre-Deprivation Due Process
What was the administrative process that plaintiffs were contesting?
What do you think is the relationship between the agency personnel and the plaintiffs?
What were the problems with the informal system of reevaluating beneficiaries status?
What was the impact on plaintiffs of terminating benefits?
How does this further complicate post-deprivation hearing rights?

20. Stopped here

21. Why Does Plaintiff Want a Pre-termination Hearing?
Do you think there were real bias issues in the process being challenged?
Why couldn't plaintiff file a written response to the termination letter?
What could she do at a hearing that she could not do in writing?
Why wasn't a post-termination hearing enough?
Why didn't the state want to give everyone a pre-termination hearing?

22. Goldberg Rights - I
1) timely and adequate notice
2) oral presentation of arguments
3) oral presentation of evidence
4) confronting adverse witnesses
5) cross-examination of adverse witnesses

23. Goldberg Rights - II
6) disclosure to the claimant of opposing evidence
7) the right to retain an attorney (no appointed counsel)
8) a determination on the record of the hearing
9) record of reasons and evidence relied on; and
10) an impartial decision maker

24. Administrative Costs of Goldberg
What does granting these hearings do to the cost (delay + personnel time) of removing someone from welfare?
What does it do to the balance of benefits costs to administration costs?
What does this do to the global cost of the benefits system?

25. Short-Term Impact of Goldberg
How does raising the administrative costs affect processing new claims for welfare?
What is the incentive for the welfare officers under the Goldberg ruling?
What expectation does it create for welfare recipients?
What long term problem did this contribute to?

26. The Subsequent History of Goldberg
Never overruled
Superseded by Matthews
Ultimately limited to its specific facts
Unfortunately, many scholars did not notice this and have argued that all deprivations that affect individuals should have pre-deprivation process.

27. Fixing Welfare - The 1996 Act
Who pushed for welfare reform?
Who signed it?
What is the new name for AFDC?
TANF - Temporary assistance for Needy Families
What does the name change tell you about the change in philosophy?
What do you get and for how long?
Supplemental Nutrition Assistance Program
How does this affect future Goldberg actions?
Will there be facts in dispute?

28. Goldberg's Children
Goldberg created the notion of an entitlement, i.e., a continued right to a government benefit as long as you met the triggering criteria for the benefit.
The next cases explored when this applied to employment, outside of civil service protections and public employee union contracts, which are more expansive than the constitutional minimum.

29. Chapter 4 - Adjudications
Part II
Employment and Liberty

30. Employment Hearings
Only government employees have constitutional rights to a hearing and due process
States and congress can create rights to employment due process for private employees
State rights are defined by the state law, not the US constitution, and can be broader than the US rights
States cannot provide less than the US Constitutional minimum due process

31. Key Question: What is the purpose of the hearing?
Getting a hearing does not mean you keep the job
Getting a hearing means that the agency has to show on the record why it fired or disciplined you.
If the agency has built the record, you are likely going to get fired or disciplined.
However, many agencies, especially state and local government agencies, do not do a great job at building records, so the agency will not be able to show in the record their justification for the action.
This may get your client a second chance.

32. Perry v. Sinderman, 408 U.S. 593 (1972) Facts Taught for 10 years
University policy was to not fire without cause after 7 years
Fired without cause
What process did he want?
Why was the university policy on continued employment critical?

33. Boards of Regents v Roth, 408 U.S. 564 (1972)
What were the terms of the contract?
Why did he claim he was fired?
Is this before the court?
What process did he want?
Did the university claim he had done anything wrong?
Could this have changed the result?
Did he get the hearing?

34. Ivor van Heerden case Ivor van Heerden case
Round II – LSU Settles on stigma + claims

35. New Property v. Old Property
How do these cases create the "new property"
How are the rights different for new property versus old property?
How is the process different if I take your medical license, versus taking your land?
What if I abolish your job or your welfare entitlement through legislation?
Through a regulation - a rule, not an adjudication.
How strong is the notion of new property?

36. Liberty Interests What is a liberty interest? What are examples?
How is a liberty interest different from a property interest?
In prison cases, at least, courts tend to talk about liberty interests when the plaintiff is about to lose
If it is not going to be protected, the court calls it a liberty interest.

37. Must There Be Facts at Issue to Get a Hearing?
What does Codd v. Velger, 429 U.S. 624 (1977) (suicidal policeman) tell us?
Why does it matter whether there are facts in dispute?
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, (1985)
“Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.”

38. Melissa I
Melissa is charged with plagiarism, which can result in expulsion from the (state) law school
What is the purpose of granting her a hearing?
What issues should she raise?
What should the school present to support its case as the moving party?
What is the value of the record of the hearing?
Should she get a hearing?
What about cancelling her scholarship without a hearing?

39. Melissa II
Melissa admits she plagiarized, but claims extenuating circumstances.
Thinking about the reasons for a hearing from Melissa I, how are these factors changed by her admission?
How has the burden of proof shifted?
Is there any factual dispute to resolve?
What if the law school has discretion in the type of punishment for plagiarism?

40. Wisconsin v. Constantineau, 400 U.S. 433 (1971)
A state law required the posting of the names of “public drunkards” at places where alcoholic beverages are sold
Did Paul concede that he was a public drunkard?
Does this put facts in issue?
What were the provisions for challenging being on the list?
What did the United States Supreme Court hold?

41. Paul v. Davis, 424 U.S. 693 (1976)
Note that this is the same term as Matthews – think about whether they are related when we read Matthews.
The sheriff gave out a list of "active shoplifters," including persons who had been arrested but not convicted
How did the court distinguish Constantineau?
What did he claim as an injury in this case?
Was there stigma +?
How might the Internet change the analysis?
What did Rehnquist say was his remedy if the characterization was incorrect?
What are the limits of such a remedy?
Is this realistic for the plaintiff?

42. Perverts R Us WWW sites: Connecticut Dept. of Public Safety v
Perverts R Us WWW sites: Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003)
State is going to list all persons convicted of a list of sexually related crimes on a public registry
What does plaintiff want a hearing on before he is listed?
Why is this a relevant factual inquiry?
What did the court find?
Why isn't this an additional punishment? (Hint - Kansas v. Hendricks – an adlaw decision)
If you were writing the opinion, where would you argue that plaintiff got his due process?
(Also see: Smith v. Doe, 123 S.Ct (2003))

43. Public Registries for Sex Offenders
Why are these popular?
What is the policy justification?
How does this affect the offender's ability to get a job or have a place to live?
How narrow are the grounds for being on the list?
How does this contribute to the guy in CA who was on the list but was able to keep a kidnap victim hostage for nearly two decades?

44. Codd v. Velger, 429 U.S. 624 (1977)
Plaintiff claimed that putting the information about suicide in his personnel file damaged his reputation and made it impossible for him to find other employment as a policeman.
Why didn't the court say that the plaintiff could just request that the file not be forwarded to a new employer?
The circuit court created a right to a hearing or the right to have the information excluded.
This is dicta, since the case was decided on other grounds by the United States Supreme Court:
“Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false.” at 627
How does this modify the lower court’s opinion?

45. Stopped Here

46. Siegert v. Gilley, 500 U.S. 226 (1991)
Was he fired from the original job?
Unethical and incompetent
Why was he fired from the new job?
Bad recommendations from the previous job.
Key to understanding this case
Who is he suing?
Did this person fire him from the second job?
Is the firing the injury or the damages?
What is the injury?
Is that enough, on its own, for a due process claim?
When does stigma plus have to attach, according to this case?
What is his proper remedy?

47. Melissa III
Melissa was charged with plagiarism but was not provided any due process protections.
Fearful of a lawsuit, the law school did not expel her, but upon her graduation it sent a letter to the State Board of Bar Examiners informing the Board that Melissa had “engaged in plagiarism in Legal Writing during her first year.”
Have her due process rights been violated under Siegert?
Is this like a recommendation letter?
Is this fair?
What is her remedy?

48. Melissa IV
Melissa is charged with plagiarism, expelled from law school without a hearing, and the plagiarism is entered on her transcript.
She sues, saying this injury to reputation rises to the level of violation of her liberty interests.
The law school say that the transcript is confidential and no one will see it unless she releases it.

49. Homeland Security and the CIA
One of the big fights over the Homeland Security Bill was its limitation of employee hearing rights
National security agency personnel are subject to firing without stated cause and get no hearing.
The Homeland Security Act extends the definition of a national security job to many more employees, who thus lose civil service protection
Why do this?
Is this a good idea?

50. Prisons
Are prisons part of the criminal law system or the administrative law system?
Why have prison populations doubled and tripled relative to the population over the past 30 years?
Learning to think like an economist:
Who benefits from tough laws, esp. drug laws?
Who benefits from prisons?
What is the tradeoff for the increased prison budgets?

51. The LA Prison Blues
Why might the murder rates be higher than the general crime rate?
How does the dysfunctional public defender system contribute to the incarnation rate?
The release problem
Many are old and no threat to the public, but they cannot be released
Costs finally pushed the legislature to make some changes.
What are the long term implications of mass incarceration when people cannot get good jobs when they do get out?

52. State Prison Litigation: 42 USC 1983
Based on deprivations of civil rights.
Due process claims, such as Sandin
"Cruel and unusual punishment claims" which generally deal with conditions of confinement or medical care.
Prison Litigation Reform Act of 1995 requires exhaustion of remedies in prison litigation, even if the administrative system cannot provide the requested remedy, if the system can provide some remedy
Cases against Federal prisons are brought under Bivens or the FTCA.

53. Prisoners as Litigants
Successful litigation is mostly by NGOs - ACLU, prison rights organizations, AIDS organizations
Individual prisoners
Do prisoners have a lot to do with their time?
Do most prisoners have sophisticated legal talents?
Do prisoners like to give the prison grief?
What is most prisoner litigation going to look like?

54. Due Process Claims
Due process claims require the plaintiff to show that he had a liberty interest in the proceeding.
Even if the court finds a liberty interest, that just lets the prisoner get a hearing or get into court.
Courts generally defer to the prison on matters of discipline and security

55. Good Time Credits and Parole to Reduce Time Served
Are these constitutionally required?
Why have them?
The Sentencing Reform Act of 1984 eliminated parole and reduced good time credits in the federal system
Combined with the expansion of federal crimes, this has lead to an explosion of federal prisoners
States passed three strikes laws to fill up their prisons.

56. Cases that Affect Time Served
Why would procedures that affect release dates get the most legal protection?
Return to prison for a parole violation (Gagnon)
Should the prisoner get a hearing?
Why - what might be contested?
Decisions reducing good time credits or affecting parole (Morrissey/Wolff)
How do these look like Goldberg benefits?

57. Sandin v Conner, 515 U.S. 472 (1995)
Prisoner got 30 days in solitary as punishment.
Is this cruel and unusual? (remember, it has to be both)
Is he entitled to a hearing?
Only when discipline "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" is due process implicated.
The Court rejected a claim that punishment of solitary confinement for 30 days was enough to trigger due process requirements.
What do many countries think of solitary confinement?

58. Wilkinson v. Austin, 125 S.Ct. 2384 (2005)
The Court concluded that indefinite placement in a "supermax" prison together with a disqualification from parole was enough to trigger due process requirements.
What does it mean to be in a supermax prison?
Why do we put inmates in them?
Wonder if the supermax mattered at all?
Does a hearing before the prison officials really mean much?

59. What rights does a prisoner retain?
Some freedom to exercise religion
Some limited right to communicate with the outside
A little bit of free speech
Some bodily integrity, at least in the area of medical care
Freedom from beatings and the like through FTCA/Bivens, 42 USC 1983, and state laws.

60. Trade-offs in Prison Regulations
Assume you have been hired to develop a new set of prison regulations for Angola.
What are the tradeoffs you must deal with?
What happens if prisoners have lots of rights?
What if prisoners have no rights?
Do more detailed regulations increase or reduce prison discretion?
Increase or reduce conflicts over rules?
Corruption of prison officials?

61. If you are Entitled to a Hearing: How Much Process is Due?
Mathews v Eldridge (1976)
If you are Entitled to a Hearing: How Much Process is Due?

62. Social Security Disability Basic Procedure
Get a form the Social Security office
What is the illness, the work history, the doc?
SSI orders records
A doc at SSI at Disability Determination Service - run by state as contractor - makes a determination
Sends to regional office
Regional office approves the claim, ask for more info, or denies the claim.
Claimant can ask for reconsideration
This is all done with records

63. Social Security Disability Basic Procedure - Appeals
Most problems arise because of poor documentation
The agency has limited authority to reject the treating physician's evaluation.
After denial, you can ask for a hearing before an ALJ
80% or more of all the federal ALJs
The agency treats the ALJ's decision as final
At this point you can appeal to the agency internal appeals process, then to the federal courts
Positive decisions are retroactive - critical due process issue
Generates the money to pay the attorney as well

64. Volume of Claims
Are there a lot of Social Security Disability claims every year?
Why is this important background for Matthews v. Eldridge?
Think about what this process looks like from the perspective of a disabled person tying to get benefits, or trying to avoid having benefits cancelled.
Will they usually have benefit of counsel?

65. Background of the Case Was plaintiff already on SSI?
Bad back and diabetes
Did he develop a complicating condition?
The 1972 questionnaire
Did Eldridge complete the questionnaire?
What did he indicate about his condition?
Did the agency still think he was disabled at this point?

66. The Termination Process
What did the agency decide about his condition as outlined in the tentative determination letter?
Was Eldridge given a chance to respond before his benefits were terminated?
Did he dispute their analysis of his condition?
Did he provide any new evidence to support his position?
What was the agency's response?

67. The Agency Process
Did the SSA accept his rebuttal of their determination?
Did he get an in-person hearing?
Were his benefits terminated?
What was his recourse?
What does plaintiff claim Goldberg gives him a right to before his benefits are terminated?

68. How are SSI Determinations Different from Welfare Determinations
What sort of information was at issue in Goldberg?
What data is used for making disability determinations?
Who would be the witnesses and how is their information collected?
Is this different from the witnesses in Goldberg?
How is the value of the claimant's testimony different from that in Goldberg?
How does this change the equities of Goldberg?
Why is the administrative decisionmaker less prone to make errors in this case than in Goldberg?

69. The Accuracy of the Proceedings
Do the parties and the amici agree on the reversal rate of the initial determination by the post-termination hearing? [58]
Is this an open or closed file review, i.e., does the claimant have one shot and if he is unsuccessful he has to start over with a new claim?
How does this make it more difficult to determine if a reversal is due to initial error by the agency?

70. The Mathews Factors
First, the cost of an erroneous deprivation of the private interest at issue - (V)
Second, the probability of reducing the chance of error through more extensive or different procedures - (P)
Explicitly recognizes that there will be uncorrected errors.
Third, the government's interest in its procedures, i.e., the incremental cost of the additional or different procedures that might reduce errors - (C)
Look familiar? Hand Formula on the next slide.

71. The Hand Formula
B = PL
(P) the probability that an accident will occur
(L) the magnitude of the resulting harm, if any accident occurs
(B) the cost of precautions that would reduce the expected harm
United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)

72. The Mathews Factors as a Cost Benefit Analysis
What is the relationship between C and (P x V)
(C)ost of added process
(P)robability of increased accuracy
(V)alue of the benefit/cost of error.
C < P x V
What is the key to convincing the court that your client should get more process?
How does this transform the notion of fairness?
Is due process a good on its own in this analysis?

73. Apply these Factors to the Case
How would you apply these factors to the Matthews case?
Does plaintiff get his pre-termination hearing?
What about detaining a tuberculosis carrier?
A terrorist who might have information about a pending attack?

74. Matthews as a the End of the Warren Court
How is Matthews different from the ideal of due process in Goldberg?
How does it differ from the notion that every person for every crimes gets the same criminal due process rights, including counsel?
Would we do better in criminal law if we were forced to recognize costs and benefits?
Could the LA public defender system meet the Matthews test?

75. How Far Does Matthews Go? Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004)
The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not "deprived of life, liberty, or property, without due process of law," U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge. Mathews dictates that the process due in any given instance is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute safeguards. (at 65)

76. De Minimis Test
Some deprivations are too insignificant to trigger a right to a hearing
Putting a cop on paid sick leave did not trigger due process
Otherwise the courts will be in every employment action
This is a key issue in 42 USC 1983 actions - how hard/often can the prison guard hit the prisoner?

77. Alternative Remedies
Due process is not the only remedy for many actions
Contracts with the government are not property but are agreements governed by contract law.
The Court of Claims system deals with these.
Unger v. National Residents Matching Program
Failing to admit resident after signing the match contract did not trigger a hearing, but would support a breach of contract action.
Does you client really need a hearing, or do you have a contract action?
Which is better?

78. Chapter 4 - Adjudications
Part III

79. Any Pre-Action Hearing Rights after Matthews?

80. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)
Firing a teacher
Applying the Matthews factors, how do you argue that an informal pre-termination hearing is required?
How is this different from Matthews itself as regards to the ability to cure problems with a post-termination hearing?

81. Gilbert v. Homar, 520 U.S. 924 (1997) Has there been a substitute for a hearing?
Who did the guard work for?
Why did this make his arrest for marijuana possession a particular problem?
Did he get any due process prior to this suspension from the workplace?
What was the importance of the decision by an "independent body" and what was the body?
What are the limits of this opinion?
Why does this being a temporary suspension matter?

82. Goss v. Lopez, 419 U.S. 565 (1975)
High school student suspended from school
What due process did the court require?
What was the Mathews analysis?

83. Ingraham v. Wright, 430 U.S. 651 (1977) School paddling case
What due process did the court require?
What was the Mathews analysis?
How does the analysis differ from Goss?
Why?
Do we still paddle students?
Why not?
Is hauling them to jail more protective of their rights?

84. Board of Curators of the Univ. of Missouri v. Horowitz, 435 U. S
Academic suspension case for a medical student
What due process did the court require?
What was the Mathews analysis?
What would be the costs of having due process for every failing student?
What would be the facts at issue?
Would this analysis differ if this had been a disciplinary suspension?

85. Law School Disciple and Due Process
Why does Mathews result in different standards for academic and disciplinary suspensions?
How do we tell whether it is an academic or disciplinary issue?
What about plagiarism? Cheating?
What is the role of special expertise and deference?
Is this just judicial deference to agency expertise and policy making, with the school as agency?

86. Bias in Administrative Hearings

87. What does a Right to an Impartial Judge Mean?
What are sources of bias?
How is the analysis different for agencies than for Article III courts?
What is separation of functions?
How does it reduce potential bias?
This argument lead to the central panel of ALJs in LA.

88. The Problem of Proof of Bias
We will see more about this in the chapter on judicial review
The core problem is that you cannot judge bias by only looking at the record, but the courts are unwilling to allow discovery into the motives of the judges
It would be like getting to depose an Article III judge as part of the appeal of a summary judgment.

89. Exception to the Requirement of Separation of Functions for the Heads of Agencies
This subsection does not apply ...
(C) to the agency or a member or members of the body comprising the agency.
The “agency” means the secretary in an agency with a single head.
The “body comprising the agency” is the commissioners or board members of an agency headed by a committee.

90. Withrow v. Larkin, 421 U.S. 35 (1975) State medical licensing board
What were the functions?
What did the doc request?
Why did the court find that it was not necessary to separate them?
The Supreme Court reiterated the fundamental importance of the need for an unbiased decision maker, but it found that the mere combination of investigatory, prosecutorial, and adjudicatory functions in the same entity did not necessarily make the entity biased in adjudicating.
Why is the record so important in these cases?
Why would an independent ALJ be a particular problem for these cases?

91. Disqualifying an Administrative Law Decisionmaker for Bias
What is the United States Supreme Court standard?
“irrevocably closed mind”
What does it take to show this?
What happened in Texaco, Inc. v. FTC, 336 F.2d 754 (D.C. Cir. 1964)?
Why does mean that the head of the EPA needed to be circumspect in comments about the BP fines?
Would generalized statements, such as the FCC chair deploring advertising to children, meet the standard?
What is the Doctrine of Necessity?

92. Kennecott Copper Corp. v. FTC, 467 F.2d 67 (10th Cir. 1972)
Kennecott owned a small coal company, then bought a big one - Peabody
FTC investigated this as an antitrust violation
A commissioner gave an interview and explained that the agency saw Kennecott as removing itself as a competitor.
Kennecott claimed this showed bias
The court said no, but warned the agency to be more careful.

93. Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966)
Who was meddling in the FTC case?
What did Senator Kefauver say?
What the court was worried about:
However, when such an investigation focuses directly and substantially upon the mental decisional processes of a Commission in a case which is pending before it, Congress is no longer intervening in the agency's legislative function, but rather, in its judicial function. At this latter point, we become concerned with the right of private litigants to a fair trial and, equally important, with their right to the appearance of impartiality, which cannot be maintained unless those who exercise the judicial function are free from powerful external influences.

94. The Pillsbury Ruling
What happens if the court disqualifies the commission because of the intimidation in the Senate hearing?
The court’s solution:
Although we conclude that the course of the questioning before the Senate subcommittee in June 1955 deprived the petitioner of the kind of hearing contemplated by the Supreme Court ... we are convinced that the Commission is not permanently disqualified to decide this case. We are convinced that the passage of time, coupled with the changes in personnel on the Commission, sufficiently insulate the present members from any outward effect from what occurred in 1955.

95. What should Congress be able to do in Hearings and for Casework?
Congressional case work – doing things for constituents such as checking on Social Security Benefits or trying to get bank regulators to lay off.
What should be allowed and what would be forbidden under Pillsbury and what you know about due process?
What if the president is meddling?
How does this change the issues?
Is he the decider?