Undue Process

Abstract:     
This Article explores the relationship of the United States Constitution to the costs of government decision-making. Constitutional law clearly can escalate these costs, as when the due process clauses are read to mandate additional procedure not otherwise favored by decision-makers. This much is understood. But the Constitution and its doctrine sometimes put downward pressure on decision costs. We lack a systematic investigation of when this is, and should be, true. I make three general claims: (1) The entire Constitution tends to reduce decision costs insofar as it is a focal point for confining disputes, and empirical work suggests that the document might not accomplish much else. (2) However, individual components of the text and its doctrine often increase rather than decrease the costs of government decision-making. (3) This situation is not ideal. An intelligently crafted federal constitutional law of undue process seems just as attractive as due process, and some courts have experimented with the former. Neither process theory nor implementation problems separate the two concepts, as long as courts are not tasked with optimizing government process. Yet the desirability of a generic undue process claim is tempered by the very conventions that allow the Constitution as a whole to reduce decision costs. Undue process claims therefore ought to be exceptional, even if occasionally potent, elements of federal constitutional practice. The most plausible occasions for successful objections are identified.

Keywords: due process, decision costs, textualism, empirical constitutional law, Katrina, Lackey, filibuster, ossification, Yucca Mountain

Accepted Paper Series