Conceiving Due Process Cynthia R. Farinat "No answer is what the wrong question begets. We seem unable to make peace with procedural due process.2 To be sure, in the twenty years since Goldberg v. Kelly3 the Supreme Court has come to speak in the clear, strong tones of doctrinal certainty. It now deals deftly with claims that people have been mishandled by their government, first culling out those who can point to no "entitlement" and then weighing up, for those who remain, just how much process the system can afford. Once-sharp and fundamental debates on the Court about the nature, scope, and purpose of procedural due process in the administrative state have subsided into occasional squabbles among the justices about the margins of the doctrine and sporadic disagreements over its specific application. Do not, however, mistake this lessening conflict on the Court for some emergent consensus that procedural due process has been brought, at last, through the turbulent years of rapid growth to a stage of doctrinal maturity and sophistication. Scratch the smooth, plausible skin of the doctrine and there lies turmoil, contradiction, and instability, a pathological combination of ineffectu- alness and destructiveness. For years, commentators have warned of this, in terms ranging from dignified rebuke4 to near evangelical condemnation.' Indeed, the doctrine's most remarkable quality may be its ability to transcend traditional boundaries and unite, in thorough-going disapproval, those on the political left and right, constitutional theorists and administrative law scholars, academics and practitioners, Kantians, utilitarians, and Hegelians.6 Procedural t Visiting Professor, Harvard Law School; Associate Professor, Cornell Law School. For their generous advice and encouragement, I am grateful to Kathy Abrams, Greg Alexander, Yvonne Cripps, Alice Hearst, David Lyons, Martha Minow, Ed Rubin, John Siliciano, Peter Strauss, David Williams, Susan Williams,Ron Wright and, in particular, to Rick Geiger, Sheri Johnson and Steve Shiffrin, who never let me lose faith. This article is dedicated to the memory of Mary Joe Frug, from a student whom she continues to teach. 1. ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH 103 (1962). 2. The Fifth Amendment of the Constitution provides: "No person shall .. .be deprived of life, liberty, or property, without due process of law. .. "The Fourteenth Amendment extends this prohibition tothe States. 3. 397 U.S. 254 (1970) (extending procedural protection to termination of welfare benefits). 4. E.g., Timothy Terrell, Liberty and Responsibility in the Land of "NewProperty : Exploring the Limits of ProceduralDue Process, 39 U. FLA. L. REV. 351, 352 (1987) ("the Court's failure to identify any consistent, meaningful, or comprehensive theory of the due process clause"). 5. E.g., Edward Rubin, Due Process and the AdministrativeState, 72 CAL. L. REV. 1044, 1065 (1984) ("the current agony of procedural due process"); id. at 1083 ("a jurisprudential Armageddon"). 6. Of course, the grounds of criticism and the proposed solutions vary dramatically. See Part II infra. Copyright 0 1991 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism [Vol. 3: 189 due process is ringed by criticism, and the Court's increasingly single-minded entrenchment in that doctrine seems the exhausted stubbornness of those who must continue to function in the face of protracted siege. I began this article as an exploration of the problems with contemporary procedural due process jurisprudence. But, as I read the considerable literature produced in the last two decades, I started to doubt my original undertaking. Critiques of the doctrine abound. Yet one more seemed unlikely to make a difference. However, as I continued, with almost morbid fascination, to read one devastating attack after another, I realized something else. Several of the most acute and imaginative minds in modern legal scholarship have pushed, and probed, and worried over what's wrong with due process in the adminis- trative state. Why, then, do we seem to make no progress towards getting procedural due process right? That is the question I consider here. I still begin by exploring the problems with procedural due process juris- prudence: its schizophrenic dependence upon and rejection of the dictates of the legislature, its simultaneous overprotection and underprotection of interac- tions between people and their government, its contorted view of the value of process. My purpose in this first half of the article is to chronicle how a profoundly troubled doctrine has resisted twenty years of efforts to right it. Just as every story embodies a point of view, so this chronicle is my own synthesis and interpretation of those years. To that end, I have selected, arranged, and connected, across time and political spectrum, so that the doctrine and the criticism it has evoked can be seen as an integrated whole. At the same time, however, I have sought to retain the voices of the courts and commentators who made the jurisprudence, conveying and (at least for the moment) sharing the aspirations and the anxieties they brought to the undertak- ing. In other words, the synthesis and interpretation that occurs in this first half deliberately takes place within the perspective of the prevailing discourse; it is a gathering together of the ways we have been accustomed to think and talk about procedural due process in the regulatory state.7 Having told the story of those years in its own terms, I then consider, in the second half of the article, how we might tell a different story. I begin by suggesting that both the problems within procedural due process doctrine and our inability to solve those problems can be directly traced to the set of assumptions-about human nature, the role of law, and the relations among people and between people and their government-that have thus far engen- dered our thinking in this area. Where we began has led us, ineluctably, to where we have ended up. These assumptions, once uncovered, may not appear novel or startling. Indeed, their very familiarity, the ease with which we take 7. Thus, the critiques (of doctrine and scholarly solutions) that I make in the first half accept the terms in which the debate has thus far been cast. My choice to reserve challenges to those terms until the second half is not meant to discourage the reader from approaching the conventional paradigm critically along the way. 1991] Conceiving Due Process them on as the concepts that shape and order our thinking, blinds us to their influence. They are assumptions which have been so embedded in our legal culture as to seem inevitable. And yet, the only thing that is inevitable is that we will be unable to solve the problems in procedural due process doctrine so long as we begin with these assumptions. And so, finally, I will pose a very different beginning: a set of understand- ings, drawn from feminist theory, about what people are and need, what law might accomplish, and how we should understand the relationship between the citizenry and the state. And I will sketch (at least, preliminarily) the very different procedural due process that might be brought forth from such origins: a jurisprudence that pursues the connection between a people and their govern- ment rather than the autonomy of isolated individuals; that seeks ever-improv- ing solutions within the particularized, living context of actual programs rather than timeless, universal answers from abstract, objective principles; and that strives to create a culture in which public power will be used with care rather than a set of weapons with which its misuse can be defended against. I hope to convince you that these alternative understandings respond, in important ways, to the experience of life in the modern regulatory state, and that they therefore hold the promise of producing the truly humane procedural due process which thus far has eluded us. I hope also to reassure you that, even though these alternative starting points are radically different from where we have been accustomed to beginning, the vision they generate would not be radically disconnected from what we have been thinking, feeling, and attempt- ing. Rather, the effect is that of reversing a damask: woven background becomes foreground, what has been muted is made manifest, a new pattern that has always existed is revealed. But even if you remain unpersuaded of these things, consider the undertaking a heuristic exploration-helping us understand that "the agony of procedural due process" is largely self-inflicted. I. THE DOCTRINE "A more misspent piece of marvellous ingenuity I never read ... The current doctrinal analysis proceeds according to a by-now-well-settled framework that tracks, quite formulaically, the language of the Fifth and Fourteenth Amendments: Has the claimant been "deprived" of "liberty" or "property" without "due process of law"? The threshold question of whether a "deprivation" has occurred is conceptually interesting, but of relatively limited practical importance. 9 Far more critical is the next analytic step: Does 8. 1 HOLMES-POLLOCK LETTERS 17 (Mark Howe ed. 1941). 9. After initially holding that negligent official conduct was sufficient, see Parratt v. Taylor, 451 U.S. Yale Journal of Law and Feminism [Vol. 3: 189 the loss involve an interest characterizable as "property" or "liberty"? The methodology for defining those interests effectively determines the scope of procedural due process protection available to the individual confronting administrative power. The Constitution, the Court has insisted, does not itself create "proper- ty."10 As explained in Board of Regents v. Roth,1 the presence of a property interest depends upon the content of the sub-constitutional federal or state law governing the particular regulatory program. Specifically, this law must contain substantive standards that limit the discretion of the official decisionmaker. Such discretion-constraining criteria create a "legitimate claim of entitlement," which constitutes the "property" due process protects.12 Originally, only property interests were identified through entitlement analysis.