Saturday, October 25, 2008

Saturday Evening Review

This Saturday evening's article is Rosalie Berger Levinson, Reining In Abuses Of Executive Power Through Substantive Due Process, 60 Florida Law Review 519 (2008).

Rosalielevinson06I have a definite soft spot for constitutional law scholarship that bridges the conventional divide between "rights" and "structures" - - - a divide many of us believe is more artificial than real.  So when I saw an article entitled "Reining In Abuses Of Executive Power Through Substantive Due Process," I put it on my "must read" list.   I'd like to suggest you put it on your list as well.  Executive power continues to be a "hot topic" and Levinson provides a rarely discussed perspective.

Here is the first line:

Substantive due process is one of the most confusing and most controversial areas of constitutional law.

Not original, but always a necessary reminder.  And it makes a nice quote to start class discussions of substantive due process.

Yet Levinson's argument is not so simple.  After a nod to the reasons for the confusion and controversy, Levinson links the due process clause to the Magna Carta through a quote by the former Chief Justice Rehnquist in Daniels v. Williams, 474 US 327, 331 (1986).  And then Levinson begins to sail.  For she is not about to merely rehearse the confusions and controversies of substantive due process.  She means to demonstrate its usefulness as a tool. 

Here's the "roadmap" section of the article:

This Article asserts that courts should recognize substantive due process as a meaningful limitation on arbitrary abuses of executive power and that victims of such abuse should not be relegated to the vagaries and increasing hurdles of state tort law. Part II of this Article briefly summarizes the origins and development of substantive due process as a limitation on legislative, judicial, and executive power. Part III critiques the positions adopted by federal appellate courts regarding substantive due process as a limitation on executive power. Finally, Part IV addresses separation of powers and federalism concerns, and suggests ways for government employees, arrestees and detainees, students, and landowners to use substantive due process as a meaningful restraint against misuse of executive power.

60 Fla. L. Rev. at 524.

For me, two aspects of this article stand out.   First, I am appreciative of Levinson's treatment of the so-called "lower courts" treatment of the issues.  Although I would have preferred more discussion of the circuit court cases in the text rather than the notes, the footnotes make fascinating reading.  They also provide a wonderful survey of due process argument possibilities, useful for in-class problems and other teaching materials.

Second, the combination of cases involving government employees, arrestees and detainees, students, and landowners provides ways of thinking about due process generally while exploring different doctrinal pathways.  Levinson keeps the cases distinct, yet the overlap and reverberations are obvious. 

Levinson's argument that the due process clause can be - - - and should be - - - used to curb executive power.  "There is no justification," she writes, for a restrictive construction of the substantive due process when "a plaintiff can establish that government officials have abused their power by arbitrarily depriving her of a property or liberty interest within the historically broad meaning of those terms."  Id. at 587. 

Of course, many will disagree and raise many justifications - - - which is what makes the substantive due process clause so "controversial."  But Levinson provides a compelling argument worth consideration by ConLaw Profs as well as by litigators.

The article is available on Westlaw and Lexis. 


Due Process (Substantive), Executive Authority, Scholarship | Permalink

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