Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2004 Procedural Justice Lawrence B. Solum Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/881 http://ssrn.com/abstract=636721 78 S. Cal. L. Rev. 181-321 (2004) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Administrative Law Commons, Dispute Resolution and Arbitration Commons, Jurisprudence Commons, Legal Theory Commons, and the Litigation Commons SOLU12.DOC 11/30/2004 9:41 AM PROCEDURAL JUSTICE* LAWRENCE B. SOLUM** TABLE OF CONTENTS I. INTRODUCTION..........................................................................182 A. WHERE TO BEGIN? EX ANTE AND EX POST PERSPECTIVES....183 B. A ROADMAP TO THE ARGUMENT ............................................191 II. SUBSTANCE AND PROCEDURE ..............................................192 A. SUBSTANCE AND PROCEDURE THROUGH THE LENS OF ERIE RAILROAD V. TOMPKINS ...................................................192 B. A THOUGHT EXPERIMENT: ACOUSTIC SEPARATION OF SUBSTANCE AND PROCEDURE.................................................206 C. THE ENTANGLEMENT OF SUBSTANCE AND PROCEDURE ........215 D. THE ENTANGLEMENT THESIS..................................................222 E. SUBSTANCE AND PROCEDURE RESTATED...............................224 III. THE FOUNDATIONS OF PROCEDURAL JUSTICE.................225 A. THE JURISPRUDENTIAL FRAMEWORK FOR THE THEORY ........226 B. THE ROLE OF PUBLIC REASON ................................................229 C. SOME OBJECTIONS TO A THEORY OF PROCEDURAL JUSTICE....................................................................................232 IV. VIEWS OF PROCEDURAL JUSTICE .........................................237 A. THE IDEA OF PROCEDURAL JUSTICE .......................................237 * © 2004 by the author. Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for educational or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in the copies. ** Professor of Law, University of San Diego School of Law. I am grateful to the participants in faculty workshops at Boston University, Fordham University, Loyola Marymount University, Ohio State University, and the University of Southern California, and to those who attended a meeting of the Sayre MacNeil Fellows for comments on an earlier draft. In particular, I owe thanks to Scott Altman, Randy Barnett, Robert Bone, Paul Carrington, David Leonard, Tyler Ochoa, Katherine Pratt, Micah Schwartzman, Ted Seto, Peter Swire, and Laurens Walker for comments, criticisms, and suggestions. Martha Fineman, Sharon Lloyd, and Frank Partnoy have provided helpful discussion. Both Loyola Marymount University and the University of San Diego provided generous research support. 181 SOLU12.DOC 11/30/2004 9:41 AM 182 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 78:181 B. THREE MODELS OF PROCEDURAL JUSTICE .............................242 C. FROM THE THREE MODELS TO A THEORY OF PROCEDURAL JUSTICE....................................................................................273 V. THE VALUE OF PARTICIPATION.............................................273 A. THE PARTICIPATION THAT IS ESSENTIAL FOR LEGITIMACY...275 B. FRAMING THE ISSUE: REDUCTION OR DEPENDENCE...............284 C. DIGNITY, EQUALITY, AND AUTONOMY...................................286 D. ANSWERS TO OBJECTIONS.......................................................289 VI. PRINCIPLES OF PROCEDURAL JUSTICE ...............................305 A. THE STATEMENT OF THE PRINCIPLES......................................305 B. THE PRINCIPLES IN RELATIONSHIP TO THE THREE MODELS...................................................................................307 C. THE PRINCIPLES IN RELATIONSHIP TO THE STRUCTURE OF EXISTING DOCTRINE ...............................................................308 VII. THE PROBLEM OF AGGREGATION ........................................313 A. TECHNOLOGIES OF AGGREGATION .........................................313 B. THE PARTICIPATION PROBLEM ...............................................315 C. STRUCTURING AGGREGATION TO ALLOW PARTICIPATION RIGHTS ....................................................................................318 D. AGGREGATION IF PARTICIPATION RIGHTS ARE IMPRACTICABLE ......................................................................319 VIII. CONCLUSION ..............................................................................320 I. INTRODUCTION Questions about procedural justice are remarkably persistent. From the Court of Star Chamber in the fourteenth century1 to Guantanamo Bay in the twenty-first,2 the common law tradition is no stranger to the notion that procedural rights may be sacrificed on the altar of substantive advantage. Legal sophisticates will hardly be surprised to learn that academics in the utilitarian tradition have argued that procedural fairness can be reduced to 1. See CORA LOUISE SCOFIELD, A STUDY OF THE COURT OF STAR CHAMBER (Burt Franklin ed., 1969) (1900) (finding references to Star Chamber as early as 1356); William Hudson, A Treatise of the Court of Star Chamber, in COLLECTANEA JURIDICA 1 (Francis Hargrave ed., 1980) (1792) (stating that Star Chamber dates from the twelfth century reign of Henry II). For more information on the Court of Star Chamber, see Frank Riebli, Note, The Spectre of Star Chamber: The Role of an Ancient English Tribunal in the Supreme Court’s Self-Incrimination Jurisprudence, 29 HASTINGS CONST. L.Q. 807 (2002). 2. See Gherebi v. Bush, 374 F.3d 727 (9th Cir. 2004); K. Elizabeth Dahlstrom, The Executive Policy Toward Detention and Trial of Foreign Citizens at Guantanamo Bay, 21 BERKELEY J. INT’L L. 662 (2003); Michael Ratner, Moving Away from the Rule of Law: Military Tribunals, Executive Detentions and Torture, 24 CARDOZO L. REV. 1513 (2003). SOLU12.DOC 11/30/2004 9:41 AM 2004] PROCEDURAL JUSTICE 183 the calculation of costs and benefits,3 including, perhaps, a taste for participation.4 Even the United States Supreme Court seems to have suggested that the most basic procedural rights, notice and an opportunity to be heard, may be denied if the balance of interests does not favor them.5 But the ascendancy of consequentialist reasoning in the courts and the academy has not laid the question of procedural justice to rest. Whenever life, liberty, or property is taken without affording the affected individual a meaningful opportunity to participate in the decisionmaking process, the cry of procedural unfairness is heard. The thesis of this Article is that such cries are grounded in reason as well as passion. While procedural justice is concerned with the benefits of accuracy and the costs of adjudication, it is not solely concerned with those costs and benefits. Rather, procedural justice is deeply entwined with the old and powerful idea that a process that guarantees rights of meaningful participation is an essential prerequisite for the legitimate authority of action-guiding legal norms. Meaningful participation requires notice and opportunity to be heard, and it requires a reasonable balance between cost and accuracy. My case for these simple and intuitively plausible claims is elaborated in the form of a theory of procedural justice for a system of civil dispute resolution. It is a commonplace of procedure scholarship to observe that theories of procedural justice are “thinly developed.”6 My aim is to begin the process of remedying this defect by providing a fully articulated and defended theory of procedural justice for a system of civil adjudication. A. WHERE TO BEGIN? EX ANTE AND EX POST PERSPECTIVES Where can we begin? We need a point of entry into the question, “What makes a procedure just?” One obvious way to approach this 3. See Louis Kaplow & Steven Shavell, Fairness Versus Welfare: Notes on the Pareto Principle, Preferences, and Distributive Justice, 32 J. LEGAL STUD. 331 (2003); Louis Kaplow, The Value of Accuracy in Adjudication: An Economic Analysis, 23 J. LEGAL STUD. 307, 307 (1994) [hereinafter Kaplow, The Value of Accuracy in Adjudication]. 4. See David Rosenberg, Individual Justice and Collectivizing Risk-Based Claims in Mass- Exposure Cases, 71 N.Y.U. L. REV. 210 (1996). 5. See Mathews v. Eldridge, 424 U.S. 319, 347–49 (1976) (using a balancing approach to resolve the question of whether the denial of an opportunity to be heard violates due process); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313–14 (1950) (using a balancing approach to resolve the question of whether due process requires notice of a proceeding). 6. See Robert G. Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485, 488–89 (2003). See also Kaplow & Shavell, supra note 3, at 228 n.6 (noting the lack of developed theories of procedural justice); Jon O. Newman, Rethinking Fairness: Perspectives on the Litigation Process, 94 YALE L.J. 1643, 1646–47 (1985) (noting that fairness arguments about procedure are limited and narrow). SOLU12.DOC 11/30/2004 9:41 AM 184 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 78:181 question is to take up the ex post perspective.7 Imagine that