Government Promises and Due Process: An Economic Analysis of the 'New Property'
Abstract
Justice Brennan fired the first shot in the "due process revolution" more than twenty years ago when his majority opinion in Goldberg v. Kelly extended the protections of the due process clause to welfare recipients. Goldberg's enthusiasts believed the expansion of the scope of due process would fundamentally change the relationship between the individual and the welfare state and would humanize the treatment of those dependent on government aid by placing their benefits under the protection of the judiciary. By all accounts, however, the Goldberg "revolution" has fallen far short of overturning the ancient regime. The "passion" of Goldberg was substantially undercut six years later by the cold rationalism of Mathews v. Eldridge. Justice Brennan's recent retirement portends further modifications and marks an appropriate occasion to review the Court's procedural due process doctrine. The incoherences spawned by the Court's disorderly retreat from Goldberg suggest that the time has come to rethink the justification for procedural protection of government benefits and to ask whether the current doctrine is consistent with those justifications. This Note concludes that the current doctrine does not adequately pursue the goals of procedural due process; it proposes an alternative, functional definition for due process protection of government benefits based on an economic analysis of the legislative bargains through which government benefits are created.