Procedural Due Process: A Reference Guide to the United States Constitution

By Rhonda Wasserman | Go to book overview

3
Notice and the Opportunity
to Be Heard

""T"he two central concerns of procedural due process "are" the prevention of
unjustified or mistaken deprivations and the promotion of participation and dialogue
by affected individuals in the decisionmaking process."1

If a state actor deprives a person of life, liberty or property while acting with the requisite state of mind, due process must be afforded. But what do the enigmatic words "due process" mean? In this chapter, we will address the central procedural protections afforded by due process: notice and the opportunity to be heard. We will consider when notice and an opportunity to be heard must be afforded in relation to the threatened deprivation. Once the timing issue has been addressed, we will evaluate the benefits of various procedural protections and explore the circumstances in which they have been required or deemed unnecessary as a matter of due process. Finally, we will explore the availability of a damages remedy for procedural due process violations.


TIMING AND FORM OF THE HEARING

The Fifth and Fourteenth Amendments protect people from deprivations of life, liberty or property without due process of law. Once it is determined that a protected interest in life, liberty or property is implicated, the critical question becomes what process is due. But when statutes or regulations that affect the interests of many people are enacted, due process does not guarantee each affected individual an opportunity to be heard (Bowles v. Willingham, 1944; see also Atkins v. Parker, 1985). As Justice Holmes explained:

Where a rule of conduct applies to more than a few people it is impracticable that every
one should have a direct voice in its adoption. The Constitution does not require all public
acts to be done in town meeting or an assembly of the whole. General statutes within the

-63-

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Procedural Due Process: A Reference Guide to the United States Constitution
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Series Foreword ix
  • Foreword xiii
  • Acknowledgments xv
  • 1: The History of Due Process 1
  • 2: Preliminaries 21
  • 3: Notice and the Opportunity to Be Heard 63
  • 4: The Form and Extent of Notice 129
  • 5: Due Process Limitations on the Binding Effect of Judgments 163
  • 6: Due Process Limitations on Personal Jurisdiction 207
  • 7: Due Process Limitations on Choice of Law 263
  • Bibliographical Essay 289
  • Table of Cases 325
  • Index 351
  • About the Author 379
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