Document Type

Article

Publication Date

Summer 1998

Keywords

Welfare law, Welfare reform, Richard Pierce, Charles Reich, Procedural due process, The New Property, Personal Responsibility and Work Opportunity Reconciliation Act

Disciplines

Administrative Law | Legislation | Public Law and Legal Theory

Abstract

After a long dry spell, the debate over procedural due process flows again. The Supreme Court has announced the first major doctrinal revision in years; Congress has gutted the regulatory program that underlay Goldberg v. Kelly; and Richard Pierce has published an essay in the Columbia Law Review prophesying a radical de-evolution of due process doctrine that will bring constitutional law into line with the profound political and social revolution evidenced by welfare “reform.” My essay takes Professor Pierce's recent work as a springboard for reengaging the debate about the direction of procedural due process. I begin by recapitulating his provocative assessment of where the contemporary doctrine has come from and what it is moving toward. I then take issue with both his descriptive and his normative claims, by tracing a different history and foretelling a different future for this persistently troubled area of constitutional law. Ultimately, I argue that Professor Pierce is very probably wrong about the legal status of the “new welfare” benefits under existing due process doctrine, that he may be wrong about an impending Supreme Court dismantling of this doctrine, and that he is certainly wrong about the legal and social desirability of any such change. Nevertheless, I conclude, there is pitifully little cause for celebration in where we find ourselves after the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

Publication Citation

Published in: Administrative Law Review, vol. 50, no. 3 (Summer 1998).