Evan C. Zoldan


Due 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.



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