Class Action Defendants’ New Lochnerism

The Due Process Clause, says Wal-Mart, guarantees a right to defend against civil claims with “any relevant rebuttal evidence they choose,” But for most of our history, courts have thought otherwise. The common law imposed a variety of limits on parties’ ability to present probative evidence to economize on the cost and unpredictability of jury fact-finding. And, not surprisingly, after ratification, American courts—the inheritors of that tradition—did not construe the Due Process Clause to require a maximally fact-intensive evidentiary hearing. They treated it as a structural right to adjudication by the right institution—an independent judiciary.

The idea that due process might bar courts from doing what they had always done—refine, and sometimes restrict, opportunities to present probative evidence in common law fashion in the service of equity and convenience—never seemed to have occurred to them.