Due Process Traditionalism

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Due Process Traditionalism

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Title: Due Process Traditionalism
Author: Sunstein, Cass Robert
Citation: Cass Sunstein, Due Process Traditionalism, 106 Mich. L. Rev. 1543 (2008).
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Abstract: In many cases, the Supreme Court has limited the scope of “substantive due process” by reference to tradition. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and they might have joined a cascade. An alternative defense sees due process traditionalism as a second-best substitute for two preferable alternatives: a purely procedural approach to the due process clause, and an approach that gives legislatures the benefit of every reasonable doubt. But it is not clear that in these domains, the first-best approaches are especially attractive. Even if they are, the second-best may be an unacceptably crude substitute. The most plausible defense of due process traditionalism operates on rule-consequentialist grounds, with the suggestion that even if traditions are not great, they are often good, and judges do best if they defer to traditions rather than attempting to specify the content of “liberty” on their own. But the rule-consequentialist defense depends on controversial assumptions about the likely goodness of traditions and the institutional incapacities of judges.
Published Version: http://www.michiganlawreview.org/assets/pdfs/106/8/sunstein.pdf
Other Sources: http://www.law.uchicago.edu/files/files/336.pdf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975538
Terms of Use: This article is made available under the terms and conditions applicable to Open Access Policy Articles, as set forth at http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#OAP
Citable link to this page: http://nrs.harvard.edu/urn-3:HUL.InstRepos:10875752
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