Hastings Constitutional Law Quarterly Volume 48 Number 2 Winter 2021 Article 4 Winter 2021 The Ideal and the Actual in Procedural Due Process Norman W. Spaulding Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 HASTINGS CONST. L.Q. 261 (2021). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol48/iss2/4 This Essay is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact
[email protected]. The Ideal and the Actual in Procedural Due Process by NORMAN W. SPAULDING1 Abstract The law proceduralists write about and teach is nothing like what most ordinary Americans experience when they step into court. Indeed, the evidence shows that most Americans who have legal problems do not ever get to court, nor do they receive a meaningful alternative hearing. In this way both judicial and academic discourse on procedure, even among those who see glaring problems of access to justice, is idealized, abstract, and ossified—unconnected to the actual. This Essay describes the ideal/actual divide in procedure—the cognitive, doctrinal and ideological effects of lingering on the ideal side of it, and the forms of subordination perpetuated on the actual side. The Essay begins by turning away from the federal courts, which decide less than two percent of all cases in the United States, in order to examine a series of recent cases and reports on the actual administration of justice in state courts, in state and federal administrative agencies, and in private arbitration.