Description
Procedural due process guarantees to individual members of the polity that government will treat each of them with fairness and respect when seeking to take their life, liberty or property. Although enshrined in the US Constitution's Fifth and Fourteenth Amendments, the scope of those guarantees has long been a source of public and academic debate. Due Process as American Democracy develops an entirely new approach to the procedural due process, grounded in foundational precepts of American political theory. It argues that American political thought comes from an adversarial understanding of democracy where individuals need to protect their own interests, because no one else can be trusted to do so. This skeptical democracy informs the separation of powers, and operates as the protector of liberal democracy. When applied to procedural due process, adversary democracy dictates a skepticism of both judges and those who seek unilaterally to represent the individuals' interests. The end result is a demand for strong protections of judicial neutrality and independence far beyond what is presently required, and imposition of serious restrictions on the ability of courts to appoint others to protect individuals' legally protected interests. The book applies these underlying democratic premises to areas of modern civil procedure and constitutional law, urging dramatic alterations in both. Original and provocative, Due Process as American Democracy provides a fresh view of the constitutional guarantee of due process and will appeal to legal scholars, practitioners, and political theorists alike.
Table of Contents
Introduction 1 Liberal Adversary Democracy 2 Due Process as Liberal Adversary Democracy 3 Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism 4 Procedural Due Process and the Day-In-Court Ideal: Resolving the Virtual Representation Dilemma5 Private Contingent Fee Lawyers, Public Power and Procedural Due Process 6 Due Process, Free Expression and the Administrative State 7 Constitutional Remedies as Due Process of Law Conclusion
