Sunday, September 23, 2007

Crash: "I hope it is not based on a fundamental misunderstanding"

I want to apologize in advance for writing yet another entry about my abstract concerns regarding due process. However, so far this is all the Civ Pro I know and this is the only way I have learned to approach the subject.  I have a few thoughts about the cases I read for this week, but they have not yet been tempered by the Socratic Method. Since I find that class is often an exercise in learning how wrong my first thoughts really are, I will put my thoughts on litigation costs off till next week. 

We wrapped up a fairly lengthy introduction to due process late last week. Yet, as thoroughly the issue was presented in class, I find myself wondering exactly what the function of the due process protection really is. Class discussion and the assigned readings have left me with conflicting notions of exactly what role it plays or should play in our system. I don’t know which notion is correct, whether it matters if I know which one is correct, or even whether there is an established or "correct" way to view due process.

My question is whether due process is meant to establish accurate procedures or to ensure that an individual is given "fair" treatment in some sense of the word that is either broader or narrower than mere accuracy. In other words, I am wondering whether a system that usually gets the answer “right” is a necessary and/or sufficient condition for the existence of procedural due process.

After finally reading what I understand to be the leading case, Matthews vs. Eldridge, I was initially convinced that accuracy plays a paramount role in due process.  After all, an important part of the balancing test that the Matthews court used was the reduction in the risk of erroneous deprivation caused by a change in procedure. Because the reduction in risk must be combined with the benefit gained by reducing that risk and then weighed against the cost of that reduction, I understood that the system does not pursue accuracy at all costs. Yet, putting the case in these terms suggested to me that procedural due process is-- at least to a substantial extent-- about ensuring some socially optimal level of accuracy.

However, class discussion made me wonder if my understanding was off base, if not slightly callous. We talked about how the balancing test is blown out of the water if you attach an infinite value to an individual’s interest in "fairness." Though I don't recall this notion of "fairness" being defined, I do think it was meant to signify something other than receiving a procedure that produces an accurate result. I came away from that class with the idea that even in a theoretical system that is 100 percent accurate, it would still be entirely possible for an individual to be denied due process rights by that system.

Now, I am left wondering whether the conception of due process offered in class was just a theoretical musing or wishful thinking, or whether it was drawn from some line of reasoning that the courts have accepted or are likely to accept in the future.  Fundamentally, I am wondering where are all of these principles come from, and whether our system can function if even a concept as fundamental as due process is so fluid and susceptible to argument. I am beginning to suspect my professor is training us to be the very people who generate the arguments for these principles.  With every case we read, we are encouraged to deconstruct the arguments and attempt to redefine the terms. 

Despite the fact that trying to make plausible arguments on both sides is kind of fun, I still want to know what due process IS. I have already come to accept that there won’t' be bright-line rules for everything. However, I do long for at least some well established blocks on which to build arguments. When I mentioned this idea to my classmate, he gave me an answer that really made me think about how our system really functions. He said, "Depending on what side of a case you are on, you may well be happy that there aren't too many well established rules."

Perhaps, I will come to accept that one day. Or, perhaps, there are some things that are more established then they now seem, and my prof. is only trying to push our reason to the limits. Either way, this is the mindset I will take to the new set of cases I read; I hope it is not based on a fundamental misunderstanding. --Crash

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