Procedural Due Process

Abstract

Any democratic judicial system must be built on the principle of due process, the fountain from which all procedural rules and doctrines flourish. Understanding the scope and contours of due process is thus crucial to the development of procedural and substantive rules that could achieve the optimal results in a democratic system. Yet the scholarly articles entirely devoted to the topic are scarce to say the least, and most of the relevant monographs have not articulated a theory of due process, but largely provide an historical overview or a survey of the rights that are commonly understood as due process rights.

A theory of due process is missing and this deficiency has, in my opinion, contributed to the lack of a true understanding and, thus, truthful, real investment of the system in the principle.

An article cannot do justice to the complexities and depth of the due process principle. But there are some ideas and insights I thought I might share here, to start defining the theory of procedural due process, and prompt deeper judicial investigation and scholarship on this topic.

Keywords: legal theory, due process, judicial decisionmaking, federal system, legislative reform, federal rules of civil procedure