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Authors

Donna H. Lee

Abstract

Although the Due Process Clause of the Fourteenth Amendment has long protected against deprivations that implicate state-created liberty interests as well as core constitutional concerns, the Supreme Court changed course in liberty interest jurisprudence in Sandin v. Conner. It retreated from a positivist approach and articulated a new test for determining when a prisoner's claim warrants procedural due process. The Court held that the challenged action must impose an "atypical and significant" hardship, but provided little guidance on how to measure typicality and significance. This Article proposes a methodology for examining typicality that is grounded in empirical evidence and advocates a balancing test that weighs typicality based on actual state practices, significance as a de minimis threshold, and state positive law as an evidentiary tool in determining whether a liberty interest is at stake. In contrast to the actual approaches taken by the lower courts interpreting Sandin, this proposal has the benefit of promoting consistency, integrity, and coherence in the development of the law regarding state-created liberty interests.

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