Originally uploaded at SSRN.

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.