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Due Process and the Right to an Individualized Hearing
Full text linkDue process requires the government to provide notice and a hearing before depriving individuals of protected rights. This right—the right to an individualized hearing—is powerful. It gives individuals the ability to know why the government is taking action that affects them; and it lets them oppose the government’s plans, often by presenting facts and arguments to a neutral decision-maker. As a result, the right to an individualized hearing can help shape the government’s substantive aims—and it even can prevent the government from acting at all. But, despite its importance, there is a longstanding exception to the right to an individualized hearing. Individualized procedures normally are not required when the government acts on more than a few people at the same time. Although the right to an individualized hearing and its exception are fundamental to due process doctrine, scholars disagree about this right’s origin, and courts have struggled to delineate its contours.
This Article offers a new explanation for the scope of the right to an individualized hearing: it is a living relic of the once-pervasive “class legislation” doctrine. At one time, class legislation doctrine was a robust constitutional mechanism used both to prevent the elevation of one “class” of society at the expense of another and to minimize arbitrary distinctions between groups. Accordingly, class legislation doctrine helped courts enforce the key rule of law value of generality. Although class legislation doctrine has faded from its prominent place in constitutional law, shades of it survive in the right to an individualized hearing. Indeed, courts sorting out the contours of the right to an individualized hearing often invoke class legislation concepts that have been discarded from other areas of the law. Reconnecting the right to an individualized hearing with its class legislation origin sheds light on this mysterious but fundamental corner of due process doctrine. It also can help courts apply the right to an individualized hearing in ways that emphasize its crucial role in protecting the rule of law
Rethinking Enmeshment and the Rule of Law in Authoritarian Contexts
Full text linkScholars frequently cite Turkey under Recep Tayyip Erdoğan’s rule among the leading examples of populism and authoritarianism in contemporary politics. Long an authoritarian regime, Turkey has in indeed evolved into a full-blown autocratic regime engaged in serious human rights violations and systemic rule of law violations. What makes this case particularly striking, however, is that this backsliding has occurred under the watch of European institutions. Claiming that the Turkish case speaks to broader issues concerning the ways in which transnational human rights and rule of law organizations interact with authoritarian regimes, this article puts forth theoretical insights for the rule of law scholarship. Going beyond conventional analyses which characterize interactions between international institutions and nation states as one-way relationships where norms flow (or not) from the top-down, it looks into the “enmeshment” of domestic and international law in authoritarian settings described in the introductory article of this special issue. Doing so, however, the article does not solely ask whether and how human rights norms are applied in authoritarian contexts, but also looks into how international organizations tasked with upholding the rule of law can not only permit illiberal states to violate those norms, but also themselves undermine these principles.
Conceptually, the article illustrates that the rule of law-rule by law spectrum fails to account for authoritarian contexts, where states go beyond rule by law to engage in legal repression and resort to lawlessness towards certain (racialized) segments of the population. Thus, it argues, if the rule of law is at one end of the analytical spectrum on the arbitrary exercise of power, what lies at the other end is lawless rule, not rule by law, and the dual state lies somewhere in between. Empirically, the article analyzes Turkey’s decades-long relationship with the European Union and in particular the European Court of Human Rights (ECtHR). It zooms in on the latter’s case law concerning Erdoğan’s resort to the law to consolidate his power (rule by law) and utter disregard of legal rules, including domestic ones, in repressing democratic dissent and engaging in state violence (lawlessness). Methodologically, to display and contest conventional scholarship’s depiction of the ECtHR as a supranational court exercising strict scrutiny of authoritarian regimes, the article goes beyond judgments, which constitute a mere 9 percent of jurisprudence, and takes a close look at inadmissibility decisions and strike-out rulings concerning Turkey’s resort to rule by law and lawlessness
Erwin Chemerinsky
No full textErwin Chemerinsky at the First Annual Celebration of Books, Spring 2010.https://scholarship.law.uci.edu/celebration_of_books_2010_photos/1006/thumbnail.jp
Ann Southworth
No full textAnn Southworth at the First Annual Celebration of Books, Spring 2010.https://scholarship.law.uci.edu/celebration_of_books_2010_photos/1000/thumbnail.jp
Group Photo
No full textGroup Photo at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1004/thumbnail.jp
Mainstreaming Unjust Enrichment and Restitution in Data Security Law
Full text linkThis Article seeks to improve enforcement of the duty of companies to safeguard personal data in their possession. It is notoriously difficult for data breach victims to succeed in class actions against companies that failed to take reasonable steps to safeguard their personal data. Many commentators have argued that existing legal rules should be relaxed or applied differently in data breach cases.
This Article argues instead that litigants and the courts should take more seriously unjust enrichment as a cause of action in those cases. The Article makes two main contributions. First, it critically analyzes the two main theories of unjust enrichment observed in data breach cases: the overpayment theory and the “would not have shopped” theory. It in turn proposes an alternative, and more plausible, account of the elements that must be proved for the overpayment theory. Second, it explains how the facilitative effects of these unjust enrichment claims on class actions solve a powerful enforcement deficit with respect to data security
Erwin Chemerinsky
No full textErwin Chemerinsky at the Third Annual Celebration of Books, April 5, 2012.https://scholarship.law.uci.edu/celebration_of_books_2012_photos/1001/thumbnail.jp