Administrative Due Process: The Quest for a Dignitary Theory

Abstract

As the due process promises of Goldberg v. Kelly were revealed to contain conditions that rendered those promises nonnegotiable in a variety of contexts, legal scholars attempted to change the shape and direction of the analysis used in defining administrative due process. Commentators demanded a more "responsive approach to procedural protection," discussed "the limits of interest balancing,' attempted to patch up the "cracks in the new property," and described "associational aims" in processes of public decision making. Indeed, quite apart from constitutional analysis of the due process clause, Richard Stewart described the modern contours of administrative law-as defined both by statute and by judicial decree-as motivated by an "interest representation model" of administration that seeks to involve in the process of decision making all of the persons or groups affected by any administrative action. More generally still, Robert Summers made a "plea for process values" with respect to all public decisional processes. The unifying thread in this literature is the perception that the effects of process on participants, not just the rationality of substantive results, must be considered in judging the legitimacy of public decision making.