The Story of Goldberg: Why this Case is Our Shorthand

Posted: 20 Jun 2005


This chapter focuses on Goldberg v. Kelly, the 1970 decision in which the Supreme Court imposed the obligation of process before the termination of benefits to a welfare recipient. Goldberg has become a shorthand for American proceduralists because it teaches five central lessons. The sine qua non of all lawsuits is a cause of action, rights from the common law, statutes, or the Constitution, that courts recognize and enforce. Goldberg's first lesson is that causes of action are not comprised of a set of fixed concepts but change over time. Concerns once understood to be mere privileges become recharacterized as predicated on legal rights, just as injuries (such as the breach of a promise to marry) that were once seen as providing cognizable legal claims sometimes shift in their valence and cease to be enforceable rights. Second, Goldberg v. Kelly stands as a central statement that fair and just outcomes depend on adequate process and offers the framework for what constitutes fair process. Justice Brennan's majority decision in Goldberg v. Kelly details the key features of procedural systems - notice, exchange of information between disputants in writing or orally hearings, and decision-making by a third party who is constrained in some respects. Goldberg is part of a series of cases that resulted in a due process revolution, obliging administrative decision-makers to fashion their processes closer to the format familiar in courts.

Third, the disagreement between the majority opinion written by Justice Brennan and the dissent written by Justice Black exemplifies a basic debate of United States law about the respective roles of courts and legislatures in articulating rights, establishing remedies, and assessing the values, costs, and benefits of both. Further, their debate is illustrative of different approaches to reading the Constitution, itself an essential document in American procedural law. Fourth, as it imposed requirements for process, the majority in Goldberg considered the capacities of those using the process. By doing so, Goldberg highlights a major fault line of the adversarial system - that opponents have different resources and capacities. The ruling paved the way for a small set of indigent litigants in civil cases to be accorded lawyers paid by the state, and the decision articulated the tension between formal statements of the right to process and their practical implementation by users with varying capacities to obtain information and argue effectively its relevance and meaning.

Fifth, Goldberg exemplifies a basic problem for all procedural systems - the pull towards trans-substantive process and the competing need to contextualize process to the specifics of the conflicts presented. The Court reiterated in Goldberg a long-held view of the Due Process Clause, that the process varied depending on the kind and nature of the interests at stake. Further, the Goldberg majority focused on the needs of welfare recipients, presumed to be ill-equipped to produce written briefs. But Goldberg also sought to inscribe elements of fair process - notice, oral hearings, decisions made based on a record and reasons given by an impartial decision maker - that transcended the specifics of any given case. The Goldberg formulation of the values of process remains critical to understanding the aspirations of adjudicatory systems as well as why those aspirations are now contested.

Suggested Citation

Resnik, Judith, The Story of Goldberg: Why this Case is Our Shorthand. CIVIL PROCEDURES STORIES: AN IN-DEPTH LOOK AT THE LENDING CIVIL PROCEDURES CASES, Kevin Clermont, ed., Foundation Press, 2004. Available at SSRN:

Judith Resnik (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

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