Due Process: A Public Dimension

Abstract

The convenors of this symposium have asked us to think about due process. Much of the due process literature in the United States considers how individuals can defend themselves against the power of the state and focuses upon equipping individuals for their confrontations with the state. Some commentators see the purpose of procedural safeguards as enhancing accuracy—that a correct result is achieved when state and individual clash. Others look beyond this goal and articulate aspirations for due process in addition to generating acceptable outcomes. Thoughtful commentators such as Jerry Mashaw and Frank Michelman have spoken about aspects of due process that advance individual dignity and efficacy. In this essay, I suggest a related but somewhat different set of issues for inclusion in our understanding of due process. For me, fairness to the individual and the generation of acceptable outcomes does not exhaust the content of due process theory. These comments are a preliminary effort to articulate another dimension of that theory. I seek to analyze the effects of and upon a third group, perhaps best described as the "public," in the ongoing process of dispute resolution. I am interested both in the role of the public in the process, and the function of the process for the public.