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1975 Sup. Ct. Rev. 261 (1975)
The Newer Property: Suggestion for the Revival of Substantive Due Process

handle is hein.journals/suprev1975 and id is 265 raw text is: MARK TUSHNET THE NEWER PROPERTY: SUGGESTION FOR THE REVIVAL OF SUBSTANTIVE DUE PROCESS The Supreme Court's judgments in recent years have not been marked by major doctrinal innovation. One such attempt, the resuscitation of a prohibition on irrebuttable presumptions, was so patently defective' that it seems to have had a lifetime of only one year.2 Another innovation, however, seems to have settled into the Burger Court's standard approach to the analysis of claims that statutory procedures for the termination of property interests fail to satisfy the requirements imposed by the Due Process Clauses. Until Board of Regents v. Roth,3 the analysis of such claims was Mark Tushnet is Associate Professor of Law, University of Wisconsin at Madison. AUTHOR's NOTE: Gordon Baldwin, Fredricka Paff, and William Whitford made helpful comments on an earlier version of this paper. The research assistance of Lawrence Hansen was especially valuable. 1 See Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 651-52 (1974) (Powell, J., concurring in the result); Note, 87 HARV. L. REv. 1534 (1974). 21 date its revival from Vlandis v. Kline, 412 U.S. 441 (1973), and its demise in Cleveland Bd. of Education v. LaFleur, 414 U.S. 632 (1974), although one can perceive some postmortem spasms in the Chief Justice's opinion for the Court in Jimenez v. Wein- berger, 417 U.S. 628, 636-37 (1974); see id., at 639 (Rehnquist, J., dissenting). Other commentators include Bell v. Burson, 402 U.S. 535 (1971), and Stanley v. Illinois, 405 U.S. 645 (1972), in the doctrine's new lifetime, see, e.g., Note, note I supra, but I think that such an interpretation misreads those cases. See Tushnet, ... And Only Wealth Will Buy You Justice-Some Notes on the Supreme Court. 1972 Term, 1974 Wisc. L. REV. 177, 194-96. 3 408 U.S. 564 (1972).

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