Procedural Due Process and Reputational Harm: Liberty as Self-Invention

U.C. Davis Law Review, Vol. 43, No. 1, p. 79, 2009

Thomas Jefferson School of Law Research Paper No. 1365390

65 Pages Posted: 22 Mar 2009 Last revised: 18 Nov 2009

Date Written: March 19, 2009

Abstract

The question addressed in this article is whether state-imposed reputational harm, in itself, should be deemed a deprivation of liberty sufficient to trigger procedural due process protection. In a sense, this is an odd question to ask. The Supreme Court, more than thirty years ago, clearly responded in the negative, requiring that state-caused stigmatic harm be accompanied by some more tangible loss for a procedural due process claim to arise. Despite much critical commentary in the wake of that decision, the Court has since not only affirmed but extended its stigma-plus doctrine.

This article suggests that the stigma-plus standard should be reconsidered for two reasons. First, the Court has been working with impoverished conceptions of reputation and liberty in constructing its stigmatic harm doctrine. This article, relying especially on insights from social labeling theory, urges a closer connection between the values of reputation and liberty, suggesting that reputation be conceptualized as a critical site for autonomous identity formation. Liberty, in turn, here is characterized in intrinsic, as opposed to the Court's instrumental, terms as comprising individual self-invention. In this way, we can see that state-imposed reputational harm, in itself, deprives affected persons of the freedom maximally to define individual self-concepts and social identities. Second, the stakes are higher now than they have been in decades. The cases that gave rise to the stigma-plus doctrine involved the government labeling individuals as shoplifters and drunkards. Today, under the stigma plus standard, the state is free to stigmatize its citizens as potential terrorists, gang members, sex offenders, child abusers, and prostitution patrons, to list just a few, all without triggering due process analysis. The final section of this article addresses these contemporary contexts, applying the theories of reputation and liberty developed in prior sections, and suggesting the need for reform of the Court's reputational harm doctrine.

Keywords: due process, reputation, stigma, stigma plus, liberty, prostitution, HIV, child abuse, sex offender, terrorist, watch list, social labels, gang data base, identity, Paul v. Davis

JEL Classification: K10

Suggested Citation

Mitnick, Eric J., Procedural Due Process and Reputational Harm: Liberty as Self-Invention (March 19, 2009). U.C. Davis Law Review, Vol. 43, No. 1, p. 79, 2009, Thomas Jefferson School of Law Research Paper No. 1365390, Available at SSRN: https://ssrn.com/abstract=1365390

Eric J. Mitnick (Contact Author)

UMass School of Law ( email )

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North Dartmouth, MA 02747-1252
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508 985 1169 (Phone)

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