DIALOGIC DUE PROCESS.

• Author: Parkin, Jason

INTRODUCTION 1116 I. COURT-DRIVEN DUE PROCESS 1122 A. The Due Process Revolution and the Modern Approach to Procedural Due Process 1122 B. Court-Driven Procedures 1127 C. Critiques of the Modern Approach to Procedural Due Process 1130 II. BOTTOM-UP PROCEDURAL INNOVATION 1134 A. Right to Counsel 1134 B. Electronic Notice 1139 C. Active Judging 1143 III. REUNIFYING AND REVIVING DUE PROCESS THROUGH DIALOGUE 1148 A. Divergence 1149 B. Dialogue 1151 1. Conditions for Dialogue 1151 2. Dialogic Due Process 1153 C. Limits and Objections 1155 1. Inconsistent with Prevailing Judicial Mood 1156 2. Tension Between Constitutional Entrenchment and Innovation 1158 3. Disruption and Uncertainty 1158 CONCLUSION 1159 INTRODUCTION

What does the future hold for procedural due process? Not too long ago, in the 1960s and 1970s, procedural due process claims occupied a prominent place on the Supreme Court's docket and attracted the attention of the nation's leading legal scholars. A series of Court decisions culminating in Goldberg v. Kelly (1) greatly expanded the scope of the Due Process Clause's coverage, triggering an "explosion" (2) in due process litigation that came to be known as the "due process revolution." (3) Constitutional litigation was the primary driver of procedural innovation, with judges ruling that the Due Process Clause demanded more or different procedures in cases involving issues as diverse as welfare benefits, (4) school discipline, (5) family law, (6) immigration deportation, (7) and public employment. (8) In 1976, the Court in Mathews v. Eldridge (9) adopted a cost--benefit approach for determining the requirements of procedural due process in civil contexts, (10) and government agencies eventually conformed their procedures to the constitutional requirements. Since the 1990s, procedural due process doctrine has been relatively stable, with few notable Supreme Court decisions and limited scholarly analysis. (11)

Even as due process doctrine stabilized, the facts and circumstances of many procedural contexts have continued to evolve. The more things change, the more likely it is that decades-old procedures must be updated to ensure fundamental fairness. Although the Supreme Court has explained that '"due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances," (12) its modern approach to procedural due process imposes significant evidentiary hurdles on plaintiffs bringing due process claims. As a result, courts have not been actively reassessing or reevaluating the constitutionality of longstanding procedural regimes.

Yet procedural innovation has not stopped. In recent years, federal, state, and local agencies and court systems have been experimenting with new and additional procedures in a wide range of legal contexts. Cities have passed legislation guaranteeing government-funded lawyers for indigent people facing eviction and deportation. (13) Agencies have adopted electronic notification systems to ensure that families receiving essential public benefits are given fast and reliable notice of benefit terminations or changes. (14) And judges have developed practices and procedures for taking a more active role in cases involving pro se litigants. (15) These experimental procedures hold the potential to benefit countless individuals and families, improving the fairness of legal proceedings where the stakes could not be higher.

These new procedural innovations share three notable features. First, they are not the result of litigation involving due process claims. Instead, they have emerged through policy and legislative reforms or other initiatives that took effect without constitutional litigation. Second, even though these innovations are not court-driven, their proponents use the language of "due process" when explaining why the new procedures are necessary and valuable. And third, the innovations are either similar to, or extensions of, procedural innovations that have been the product of due process litigation in the past. In other words, despite being delinked from constitutional litigation and the development of due process doctrine, the new wave of innovation remains fundamentally connected to the Constitution's due process guarantee.

As procedural innovations proliferate, how will they affect due process doctrine? Perhaps not at all--the innovations may take root or not, while the doctrine remains essentially static. After all, states and cities are free to provide procedural safeguards above and beyond the floor established by the Constitution. Under this view, bottom-up procedural innovations could serve as merely an interesting footnote to our understanding of the Due Process Clause--highly meaningful to the individuals and proceedings they affect but inconsequential as a doctrinal matter and irrelevant to people living in places where the innovations are not available.

This Article considers a different outcome, one that is shaped by a dialogue between bottom-up procedural innovations and the courts' development of due process doctrine. For over forty years, since its decision in Mathews v. Eldridge, the Supreme Court has evaluated the constitutionality of procedural rules based on a fact-intensive cost--benefit analysis. (16) Under Mathews, courts must consider three factors when determining the "specific dictates" of procedural due process:

[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (17) The Court uses a similar balancing approach when considering whether the notice provided by the government satisfies due process. (18) Thus, the procedural due process analysis is sensitive to the facts and circumstances of a particular procedural regime. This distinguishes due process from other individual rights conferred by the Constitution, making due process amenable to reevaluation and revision.

The recent wave of procedural experimentation is generating precisely the kind of evidence that can influence future due process balancing. For each innovation, it may be possible to answer the following questions, among others: How much does a particular innovation cost? To what extent does it help avoid erroneous deprivations of constitutionally protected interests? Is it administratively feasible? As each innovation is implemented, it will be possible to gather data and answer these questions in ways that would be otherwise impossible. This evidence could then be used to fuel litigation efforts to push due process doctrine in new and important directions.

To be sure, there may be reasons to resist constitutionalizing the latest procedural innovations. Ever since the due process revolution, judges, government officials, advocates, and scholars have expressed concerns about extending the scope of constitutional protection. (19) Just because an innovation is feasible or appropriate in one context or in one location does not necessarily mean that it should be extended more broadly. Similarly, some worry that raising the constitutional floor will stifle future innovation. (20) Put simply, the recent flourishing of innovation could be perceived as proof that the courts and the Constitution should keep out. And fears of increased uncertainty and disruption are not to be taken lightly. (21)

But the requirements of due process are particularly well-suited to evolve based on a dialogue between on-the-ground experimentation and legal doctrine. As the Supreme Court has emphasized in case after case, "due process is flexible and calls for such procedural protections as the particular situation demands." (22) While the extent to which other constitutional rights may change over time is subject to intense dispute, (23) the procedural rights conferred by the Due Process Clause are under no such constraints. (24)

The idea that changing facts and circumstances can affect the meaning of a constitutional right is not a novel one. Courts interpreting the Fourth Amendment's prohibition on "unreasonable searches and seizures" (25) look to an individual's "reasonable expectation of privacy," (26) which evolves over time. Similarly, courts interpreting the Eighth Amendment's prohibition on "cruel and unusual punishments" (27) consider "evolving standards of decency that mark the progress of a maturing society." (28) Nor is the concept of dialogue foreign to constitutional law, though it is typically used to describe an exchange between courts and legislatures (29) or government officials and affected individuals. (30)

This Article argues that a dialogic approach to procedural due process can reunify and revive due process doctrine. I do not suggest that every procedural innovation must be incorporated into due process doctrine--just that courts reviewing due process claims can and should look to non-court-driven reforms for insight into what the Due Process Clause requires. Specifically, courts should consider the data and information generated by procedural reforms when applying the interest-balancing tests mandated by the Supreme Court's modern approach to due process. The result of that balancing may or may not provide a basis for courts to order additional or alternative procedural safeguards, but this kind of dialogue offers an opportunity to connect due process litigation with non-court-driven innovation and to revive an increasingly stagnant aspect of due process doctrine.

This Article proceeds as follows. Part I traces the development of the Supreme Court's modern approach to procedural due process. It highlights the role of courts as the drivers of...