Due Process as Choice of Law: A Study in the History of a Judicial Doctrine

60 Pages Posted: 1 May 2016

See all articles by Matthew J. Steilen

Matthew J. Steilen

State University of New York (SUNY) at Buffalo, Law School

Date Written: April 2016


This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies.

This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a reading of due process cases in state courts before the Civil War, and argues that, in many of these cases, courts were asked to negotiate the institutional conflict between themselves and various summary bodies, including non-common-law courts, magistrates, commissioners, corporations, and even legislatures, which played a significant role in the administration of government. The Article then reconstructs federal due process cases in the period from 1870 to 1915, arguing that the Supreme Court limited the use of summary procedures by testing their fit with the so-called public interest, or public right, ostensibly at issue. Finally, the article turns to the due process “revolution” and “counter-revolution,” showing how the traditional choice-of-law framework broke down, resulting in the Mathews decision.

Keywords: due process, procedural due process, choice of law, conflicts of law, Mathews, Mathews v. Eldridge, Murray's Lessee, Taylor v. Porter, Zylstra, Hoke, Davidson v. New Orleans, Hagar, Londoner, Bi-Metallic, McGrath, Goldberg

Suggested Citation

Steilen, Matthew J., Due Process as Choice of Law: A Study in the History of a Judicial Doctrine (April 2016). William & Mary Bill of Rights, Vol. 24, 2016. Available at SSRN: https://ssrn.com/abstract=2773089

Matthew J. Steilen (Contact Author)

State University of New York (SUNY) at Buffalo, Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

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