Another Case in Lochner’s Legacy, The Court’s Assault on New Property: The Right to the Mandatory Enforcement of a Restraining Order is “a Sham, Nullity and Cruel Deception”


This article provides a thorough critique of the Supreme Court decision of Castle Rock v. Gonzales 125 S. Ct. 2796 (2005) which dismissed respondent’s case for failing to establish that she had a property right in the enforcement of a restraining order that was worthy of procedural due process protection. The article critiques the Court’s methodology and substantive arguments. The article concludes by situating the decision in “Lochner’s legacy,” a legacy of decisions that Cass Sunstein has identified as privileging “government inaction,” and “the existing distribution of entitlements” as set by the common law. Just as the Lochner Court decided that it was for it to determine the meaning of “liberty” when it struck down a New York statute designed to limit the hours of bakers for their health, the Court in Castle Rock has decided it is for it to determine the meaning of “property,” by rewriting a statute designed to make enforcement of restraining orders mandatory for the safety of those granted orders. Just as the Lochner Court chose the liberty of employers over the health of workers, the Court in Castle Rock has chosen the liberty of police officers over the safety of victims of domestic violence.


Civil Rights and Discrimination | Constitutional Law

Date of this Version

August 2005