Redefining Property in Due Process: Town of Castle Rock V. Gonzales and the Demise of the Positive Law Approach

41 Pages Posted: 7 Jun 2006


Ever since its landmark 1972 decision in Board of Regents of State Colleges v. Roth, the United States Supreme Court has defined property for due process purposes as a legitimate claim of entitlement rooted in a source of law independent from the Constitution. Within this basic framework, the Court has recognized a variety of property interests, such as causes of action and public education, that go beyond the traditional concept of property as limited to tangible goods and real estate. In the 2005 Term, however, the Court in Town of Castle Rock v. Gonzales revisited its due process jurisprudence and sharply reined in the outer parameters of Roth's definition of property. In addressing Ms. Gonzales' claim that the court-ordered restraining order against her husband entitled her to police protection, the Court read the mandatory language in the restraining order statute narrowly and strongly suggested that no statute, however worded, could ever constitute property under Roth because it would lack ascertainable monetary value and would only indirectly benefit him or her.

This paper not only critiques the Court's statutory analysis and its additional criteria for rejecting Ms. Gonzales' claim, but also suggests a new approach to drawing the vague parameters of property under Roth. As a refinement of Roth's conception of property as an entitlement, this paper suggests a more specific approach to defining property for due process purposes: a benefit rooted in a source of law other than the Constitution and conferred on a discrete class of persons that requires specific conditions for its conferral and is removable only upon specific conditions. Such a definition not only harmonizes the Court's jurisprudence in this area, unlike Castle Rock's approach, but also comes closer to protecting the underlying purposes of the Due Process Clause - to prevent arbitrary government action and protect those claims upon which people rely in their daily lives.

Keywords: property, Due Process Clause, Castle Rock, Gonzales

JEL Classification: K10, K11

Suggested Citation

Hugenberger, Joel A., Redefining Property in Due Process: Town of Castle Rock V. Gonzales and the Demise of the Positive Law Approach. Boston College Law Review, Vol. 47, July 2006. Available at SSRN:

Joel A. Hugenberger (Contact Author)

affiliation not provided to SSRN ( email )

No Address Available

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