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Although it was not the first case in which the Supreme Court upheld a welfare claim, Goldberg v. Kelly is often thought of as the case that extended the rule of law to the welfare system. In doing so, it repudiated the "right/privilege" distinction that would confine procedural protections of economic interests to private law claims.

But Goldberg did not challenge basic assumptions about the nature of procedural fairness that the legal culture had developed principally in connection with private law claims. Its conception of fairness focused on claims initiated by individuals for relief for themselves, and on an adjudicatory process independent of and differentiated from the process of general or line administration. The Court had no occasion in Goldberg to adopt the perspective of "public law litigation" or "structural" relief that on occasion led the federal courts to assess and remake the administrative processes of schools, prisons, and mental health facilities, and it has not applied this perspective to the welfare system since then. Goldberg imported to the welfare sphere an untransformed private law vision of procedure.

Goldberg's residual private law perspective has been an important limitation on its effect on the welfare system and its beneficiaries. That effect has not been merely negligible or cosmetic, but it has been erratic and fallen far short of providing generally reliable guarantees of fair treatment to beneficiaries.

I plan to offer a brief defense of Goldberg's basic rule-of-law premise against Richard Epstein's critique, and then to sketch my own critique of the limited way the premise has been implemented.