Dialogic Due Process

Abstract

What does the future hold for procedural due process? From the due process revolution of the 1960s and 1970s until recently, constitutional litigation was the primary driver of procedural innovation. Plaintiffs brought lawsuits challenging existing procedures under the Due Process Clause, and courts used the Supreme Court’s cost–benefit, interest-balancing approach to determine the specific dictates of due process. That approach reflected the Court’s longstanding view of procedural due process as flexible and adaptable to changing circumstances, but it also imposed significant evidentiary hurdles on due process plaintiffs. As a result, in recent years, due process doctrine has stagnated, with courts less and less interested in ordering additional or alternative procedural safeguards.

At the same time, bottom-up procedural experimentation is on the rise. Across jurisdictions and legal contexts, government agencies and court systems are reforming procedures in ways that have been unachievable through litigation. These reforms — for example, creating a right to counsel in deportation and eviction cases, adopting electronic forms of notice, and requiring judges to play an active role in cases with pro se litigants — strike at the heart of the due process guarantee, yet the courts are not driving these changes. This has created a growing gap between due process doctrine and procedural innovations that are not the result of litigation.

This Article analyzes the current divergence between due process doctrine and practice. It begins by tracing the shift from the due process revolution’s court-driven procedures to today’s bottom-up experimentation. Next, it examines three recent examples of procedural experimentation and situates those innovations within the Supreme Court’s due process doctrine. The Article then proposes a dialogic approach to procedural due process, through which data generated by procedural innovations can help courts evaluate due process claims in litigation. By putting courts in conversation with the wave of procedural innovations unfolding across the nation, this dialogic approach can help revive an otherwise stagnant branch of constitutional doctrine and ensure that the Due Process Clause continues to guarantee fair procedures in the face of changing circumstances.

Keywords: due process, administrative law, constitutional law, civil procedure, civil rights