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Flashcards in Substantive Due Process Deck (6)
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1
Q

What is the source of “substantive due process”?

A

There are TWO DP clauses:

  1. 5th amendment, applies to fed gov
  2. 14th amendment, applies to state/local gov

The same standards apply to both

2
Q

What are the applicable standards for “substantive due process” claims?

A
  1. If FUNDAMENTAL RIGHT –> Strict Scrutiny (gov has burden of proof)
  2. All other cases –> rational basis (challenger has burden of proof)
3
Q

What is the rule re: “rebuttable presumptions” and “substantive due process”?

A

If facts are presumed against a person so that she cannot demonstrate that she is qualified for an important benefit/right, the “irrebutable presumption” may violate DP.

NOTE: it won’t be invalid merely bc it’s an irrebutable presumption. The regular test applies.

4
Q

What is the rule re: “fair notice” and “substantive due process”?

A

Laws that regulate people or entities MUST give FAIR NOTICE of conduct that is forbidden or required.

A regulation that fails to give fair notice violates DP.

5
Q

What is the relationship btwn “substantive due process” and “equal protection” ?

A

Both substantive DP and equal protection require court to review substance of a law rather than procedures employed

If limits liberty of all persons ---> usually DP question
If limits person or class of persons --> usually EP claim
6
Q

What are “fundamental rights” for the purpose of substantive DP (and equal protection)?

A
  1. Right to interstate travel
  2. privacy
  3. right to vote
  4. 1st amendment