Redefining Property Under the Due Process Clause: Town of Castle Rock v. Gonzales and the Demise of the Positive Law Approach

Abstract

Since Board of Regents of State Colleges v. Roth, the U.S. 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 and has recognized a broad variety of property interests. In 2005, however, the Court in Town of Castle Rock v. Gonzales reined in its due process property jurisprudence in determining that a courtordered restraining order did not create property because its language was discretionary. The Court also suggested that no police protection statute, however worded, could ever constitute property because its enforcement lacks ascertainable monetary value and only indirectly benefits the protected person. This Note argues that the Court should refine the definition of property as a benefit rooted in a source of law independent from the Constitution that is conferred on a specific class subject to specific conditions and terminable only tinder specific conditions.