Academic journal article Stanford Law Review

Undue Process

Academic journal article Stanford Law Review

Undue Process

Article excerpt

     A. Nightmares
         1. Stroud Township
         2. Katrina and FEMA
         3. Death row.
         4. Filibusters
         5. "Peanut butter"
         6. Yucca Mountain
     B. Conceptual Introduction
     C. Working Definitions
         1. Decision
         2. Decision costs
     A. The Whole Text
         1. Focal points
         2. Empirical inquiries
     B. The Parts Elaborated
         1. Cross-cutting norms
         2. Localized norms
             a. Positive lawmaking
             b. Criminal procedure and rights parasites
             c. Final judgments and litigation burdens
             d. Quasi-Mathews and substantive due process
     A. Constitutional Options
     B. Process Theories and Undue Process Policy
         1. Rights retrofitted
         2. Utilitarianism and rule of law
     C. Undue Process as Constitutional Law
         1. Stories of systematic failure
         2. Institutional choice and design
     D. Nightmares Relived
         1. Plausible objections
         2. Implausible objections

He has no equal on earth, being created without fear.... [O]f all the sons of pride he is the king. ([dagger])

But because he is mortal and subject to decay, as all other earthly creatures are.... I shall in the next following chapters speak of his diseases, and the causes of his mortality.... ([dagger])([dagger])


Locating the law of due process is too easy. Our statutes, regulations, case reporters, and academic journals are packed with ideas about when government makes decisions too precipitously, or without adequate participation, or with insufficient assurance of accuracy. For example, the minimum process necessary for a lawful government decision under the Fifth and Fourteenth Amendments is a renowned feature of the U.S. Constitution. And its associated scholarship has an almost immeasurable scope. (1) Such inquiries are often connected to an attitude about government. They treat the state as a force to be feared and constrained, by process if nothing else. (2) On this view, the most valuable parts of the Constitution include its Due Process Clauses, preservation of habeas corpus, overlapping authority on matters of war and peace, and elaborate requirements for statute making and constitutional amendment. Among the heroic instances of judicial intervention are marquee cases like Gideon v. Wainwright, (3) Goldberg v. Kelly, (4) Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), (5) and Hamdan v. Rumsfeld. (6)

If you want to understand "undue process"--the point at which government decision making becomes too tardy, or too inclusive, or too careful as a matter of law--there is far less material competing for your attention. This is certainly true for constitutional law and theory. We do not have an integrated examination of the Constitution for the caps it places, and should place, on decision costs. Although the text seems to lack a crosscutting guarantee against undue process, certain lines of constitutional law do cabin government procedure. Animating their drive for recognition is a conviction that an efficacious and efficient state is necessary to successful social life: that "the vigor of government is essential to the security of liberty," not to mention other demands for social justice. (7) A vigorous state and sensible resource allocation are jeopardized by excessive hand-wringing, all-inclusive roundtable deliberation, and unrealistic hopes for perfection. On this view, we ought to cheer for arcane provisions like the default date for congressional assembly and the rules of presidential succession, (8) along with the Double Jeopardy, Speedy Trial, and Full Faith and Credit Clauses. (9) We should celebrate pitifully obscure decisions such as Hollingsworth v. Virginia, (10) Klopfer v. North Carolina, (11) and Plaut v. …

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