Description

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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.

About the Author

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Martin H. Redish is the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law; teaching and writing on the subjects of federal jurisdiction, civil procedure, freedom of expression, and constitutional law. Professor Redish has consistently ranked among the thirty-five most cited legal scholars of all time on Hein Online. He is the winner of the 2021 Association of American Law Schools Daniel J. Meltzer Award for Outstanding Scholarship and Teaching in Federal Courts, and he has testified numerous times as an expert witness before congressional committees.