Due Process as Choice of Law: A Study in the History of a Judicial Doctrine

This Article argues that procedural due process can be understood as a choice of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law—personal notice, oral hearing, neutral judge, and jury trial—and summary procedures employed in administrative agencies. This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history.

It begins with a reading of due process cases in state courts before the Civil War, and argues that, in many of these cases, courts were asked to negotiate the institutional conflict between themselves and various summary bodies, including non-common-law courts, magistrates, commissioners, corporations, and even legislatures, which played a significant role in the administration of government. The Article then reconstructs federal due process cases in the period from 1870 to 1915, arguing that the Supreme Court limited the use of summary procedures by testing their fit with the so-called public interest, or public right, ostensibly at issue. Finally, the Article turns to the due process “revolution” and “counter-revolution,” showing how the traditional choice-of-law framework broke down, resulting in the Mathews decision.