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Due process traditionalism.

Cass R Sunstein¹

¹Law School and Department of Political Science, University of Chicago, USA.

Michigan Law Review

|July 4, 2008

Summary

This summary is machine-generated.

Supreme Court precedent often limits substantive due process by tradition, but justifications remain unclear. This analysis explores defenses of due process traditionalism, finding rule-consequentialist arguments most plausible yet reliant on questionable assumptions.

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Area of Science:

Legal Philosophy
Constitutional Law
Judicial Decision-Making

Background:

The Supreme Court frequently invokes tradition to limit substantive due process.
The Court has not provided a clear rationale for this traditionalist approach.
Understanding the theoretical underpinnings of due process traditionalism is crucial for legal interpretation.

Purpose of the Study:

To examine and evaluate various philosophical defenses of due process traditionalism.
To critically assess the justifications for relying on tradition in constitutional law.
To explore the implications of different traditionalist arguments for judicial practice.

Main Methods:

Philosophical analysis of arguments for due process traditionalism.
Critique of defenses drawing on Burkean and Hayekian ideas.
Evaluation of alternative approaches and rule-consequentialist justifications.

Main Results:

The defense of traditionalism based on widespread acceptance faces challenges related to participant assent, bias, and informational cascades.
Alternative justifications, such as proceduralism or legislative deference, present their own difficulties.
Rule-consequentialist defenses, while plausible, rest on contested assumptions about tradition's quality and judicial capacity.

Conclusions:

No single defense of due process traditionalism appears fully convincing.
The reliance on tradition in substantive due process cases warrants continued scrutiny.
Further research is needed to clarify the theoretical and practical implications of judicial traditionalism.