NCJ Number
115600
Journal
New York University Law Review Volume: 59 Issue: 3 Dated: (June 1984) Pages: 482-585
Date Published
1984
Length
104 pages
Annotation
This paper traces the development of the U.S. Supreme Court's positivist theory of property and critiques its more recent extension to liberty in a series of cases involving prisoners' due process rights.
Abstract
In Goldberg v Kelly (1970), the Supreme Court extended procedural due process protection to certain State-created benefits that had been considered mere privileges. The decision triggered an explosion in due process litigation, leading to the Burger Court trying to restrict the steady flow of State claimants entering Federal court to vindicate their new found rights. One such measure has been the positivist conception of property and liberty which maintains that an individual can have no interest cognizable under the due process clause unless State law or practice has positively created one. This paper argues that the positivist conception of liberty makes little sense on a theoretical level and has not been very successful in achieving the Court's practical goals. It urges that liberty should once again be defined and protected by reference to the Constitution and not State law. Finally, more direct approaches, many of which already limit due process claims brought under section 1983 or as habeas corpus petitions, are available to address concerns about the scope of Federal review. 372 footnotes. (Author abstract modified)