40 Admin. L. Rev. 239 (1988)
The Social Security Decisions of Judge Frank Easterbrook, Seventh Circuit Court of Appeals

handle is hein.journals/admin40 and id is 259 raw text is: 239
COMMENT:
The Social Security Decisions of
Judge Frank Easterbrook, Seventh
Circuit Court of Appeals
Martha F. Davis*
66;Arhat process is due is a hard question because so much of'
V¥the doctrine of procedural clue process is up for grabs. After
Mathews v. Eldridge,l finding an answer requires agreeing that a certain
benefit is an entitlement; agreeing on its worth and the cost of' pro-
tecting it; and agreeing on who-the courts or the legislature or an
agency-should decide on the appropriate process to protect the en-
titlement. What's more, even the Mathews procedure for finding what
process is due is unsettled.
In the past few years, Judge Frank Easterbrook of the Seventh
Circuit Court of Appeals has advanced a theory which, in capsule
form, argues that Mathews sets up a standardless lottery for deter-
mining due process rights.2 Easterbrook argues that the Mathews test
is a lottery because it gives no right to any procedures at all in instances
where a due process right has been established. Judge Easterbrook
further questions the extent to which there can be any entitlements
in the first place.4
.Associate, Cleary, Gottlieb, Steen & Hamilton, New York City, New York. A.B.,
Radcliffe College; M.A., Oxford University; J.D., University of Chicago. I want io
thank Elizabeth Glazer for comments on an early draft.
1424 U.S. 319 (1976).
2Easterbrook, Substance and Due Proces, 1982 Sul. CT. REv. 85, 120. In Mathews, the
Court determined that, though Social Security disability benefits are a property in-
terest, an evidentiary hearing is not required prior to their termination. To reach that
conclusion, the Mathews Court advanced a three-part balancing test to assess the re-
quirements of due process when an entitlement is at issue: (1) the private interests
implicated; (2) the risk of the erroneous deprivation of such interest through the
procedures used; and (3) the government's interest, including the fiscal and adminis-
trative burdens that additional or substitute procedures would entail. 424 U.S. at 332-
35.
See Redish & Marshall, Adjadicalty Indtpetdenice and the Valuev of Procedural Due Proceo.,
95 YALE L.J. 455, 472 (1986).
tSee Easterbrook, supra note 2, at 90- 109 for coistitUiional and historical analyses
of the due process clause.

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