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Procedure, Participation, Rights

Robert G. Bone

University of Texas School of Law

April 28, 2010

Boston University Law Review, Forthcoming
U of Texas Law, Public Law Research Paper No. 172

This essay is a contribution to a symposium on Professor Ronald Dworkin’s forthcoming book, JUSTICE FOR HEDGEHOGS. The essay asks whether procedural rights make sense in American civil litigation, where “right” is understood in the Dworkinian sense of limiting, resisting, or trumping arguments based on furthering a collective social goal or improving aggregate welfare. Professor Dworkin addressed this question in a wonderfully rich and provocative essay published in the early 1980s, entitled “Principle, Policy, Procedure.” I take a critical look at Professor Dworkin’s argument and use the opportunity to explain why it so difficult to articulate a coherent theory of procedural rights. In particular, Part I of my essay argues that the best interpretation of American civil adjudication is likely to recognize procedural rights with a curious property: the right must be defined at its core in a way that somehow yields to arguments of high social cost at the same time as resisting those arguments in the way a right is supposed to do. Part II describes Professor Dworkin’s theory, explains how it meets the definitional challenge, and criticizes its main elements. Part III examines two competing theories of procedural rights and explains why they too are problematic. The essay concludes by calling for more work on the nature of procedural rights in civil litigation. There is much at stake. If there is no coherent account of procedural rights, then radical reforms justified on utilitarian grounds should receive much more favorable attention than they have to date.

Number of Pages in PDF File: 19

Keywords: procedural rights, Dworkin, Fuller, outcome-based, process-based, moral harm

JEL Classification: K00, K40, K41

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Date posted: May 4, 2010 ; Last revised: May 15, 2010

Suggested Citation

Bone, Robert G., Procedure, Participation, Rights (April 28, 2010). Boston University Law Review, Forthcoming; U of Texas Law, Public Law Research Paper No. 172. Available at SSRN: https://ssrn.com/abstract=1600246 or http://dx.doi.org/10.2139/ssrn.1600246

Contact Information

Robert G. Bone (Contact Author)
University of Texas School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-5562 (Phone)
512-471-6988 (Fax)

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