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http://ssrn.com/abstract=1432479
 
 

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State-Created Property and Due Process of Law: Filling the Void Left by Engquist v. Oregon Department of Agriculture


Michael Lewis Wells


University of Georgia Law School

Alice Snedeker


affiliation not provided to SSRN

July 1, 2009

UGA Legal Studies Research Paper No. 09-008
Georgia Law Review, Forthcoming

Abstract:     
Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a 'class-of-one' Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis on which some (but not all) litigants claiming arbitrary treatment by officials may seek relief. Persons whose relations with the state — whether as employee, holder of a business license, land developer, or otherwise — give rise to 'state-created' property interests may sue under the Due Process Clause when officials deprive them of those interests without due process of law. The right to procedural safeguards for such interests is well-established. We argue that they are entitled also to substantive protection. Yet, the case law on substantive due process for state-created property is sketchy, fragmented, and contradictory, in part, because the Supreme Court has provided little guidance. We develop an argument for substantive due process rights in this context, identify and meet objections to our thesis, and show how the right would operate in practice. Finally, we consider the impact of Engquist, an Equal Protection case, on our Due Process theory of recovery.

Number of Pages in PDF File: 47

Keywords: due process, equal protection, government employees

JEL Classification: K19

Accepted Paper Series


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Date posted: July 13, 2009  

Suggested Citation

Wells, Michael Lewis and Snedeker, Alice, State-Created Property and Due Process of Law: Filling the Void Left by Engquist v. Oregon Department of Agriculture (July 1, 2009). UGA Legal Studies Research Paper No. 09-008; Georgia Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1432479

Contact Information

Michael Lewis Wells (Contact Author)
University of Georgia Law School ( email )
Athens, GA 30602
United States

Alice Snedeker
affiliation not provided to SSRN ( email )
Feedback to SSRN


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