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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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