Due Process As American Democracy
Format:Hardback
Publisher:Oxford University Press Inc
Published:22nd Mar '24
Should be back in stock very soon
Procedural due process guarantees to individual members of the polity that government will treat each of them with fairness and respect when seeking to take their life, liberty, or property. Although enshrined in the US Constitution's Fifth and Fourteenth Amendments, the scope of those guarantees has long been a source of public and academic debate. Due Process as American Democracy develops an entirely new approach to the procedural due process, grounded in foundational precepts of American political theory. It argues that American political thought comes from an adversarial understanding of democracy where individuals need to protect their own interests, because no one else can be trusted to do so. This skeptical democracy informs the separation of powers and operates as the protector of liberal democracy. When applied to procedural due process, adversary democracy dictates a skepticism of both judges and those who seek unilaterally to represent the individuals' interests. The end result is a demand for strong protections of judicial neutrality and independence far beyond what is presently required and imposition of serious restrictions on the ability of courts to appoint others to protect individuals' legally protected interests. The book applies these underlying democratic premises to areas of modern civil procedure and constitutional law, urging dramatic alterations in both. Original and provocative,Due Process as American Democracy provides a fresh view of the constitutional guarantee of due process and will appeal to legal scholars, practitioners, and political theorists alike.
Professor Redish's tour de force deftly blends political theory, constitutional theory, and doctrine into a thoughtful, ambitious, and provocative reconstruction of the concept of due process. Scholars interested in constitutional law, interpretative theory, civil procedure, administrative law, legal ethics, remedies, free speech, the public-private distinction, or the American constitutional order as a whole - just to name a few topics covered in this bold and engaging work - will find themselves sometimes cheering, sometimes jeering, but always thinking. This is scholarship at its best. * Professor Gary Lawson, Philip S. Beck Professor of Law, Boston University School of Law *
No scholar has written more cogently about the intersection of democratic theory with American constitutional due process. In this provocative new book Professor Martin Redish challenges conventional due process accounts based on originalism, utilitarianism, and dignity values... The nub of Redish's argument is that due process accounts fail to ground it in underlying democratic theory or a proper appreciation of separation of powers doctrine. Redish revolutionizes due process thinking with a new theory based on concepts of liberal adversarial democracy and skeptical optimism. He illustrates his theory in settings such as complex multidistrict litigation, representative lawsuits, private contingent fee attorneys aligning with government attorneys, and administrative actions. * Professor Linda S. Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas School of Law *
Procedural due process (PDP) is one of the most invoked and least understood concepts in American law. In this pathbreaking book, Professor Redish views PDP as an outgrowth of "liberal adversary democracy," rooted in mistrust of those who wield power. He uses this lens to illuminate problematic doctrine in civil procedure, administrative law, and constitutional law. Only a scholar of Redish's breadth and depth could write this sweeping and important book. It is a capstone achievement by one of America's preeminent constitutional theorists. * Richard Freer, Charles Howard Candler Professor of Law, Emory University *
Excellent for law school collections. * Choice *
ISBN: 9780197747414
Dimensions: 163mm x 216mm x 41mm
Weight: 590g
320 pages