Adjudicatory Independence and the Values of Procedural Due Process

Abstract

According to the positivist view of procedural due process, the courts should play no role in defining what procedures are necessary to satisfy the constitutional requirement. 1 2 Rather, the term "due process" dictates that individuals be afforded whatever procedures the legislature has mandated-no more and no less. If the legislature has not recognized the right 9. See infra notes 87-143 and accompanying text. 10. See infra notes 144-49 and accompanying text. 11. See infra notes 150-80 and accompanying text. 12. See Easterbrook, supra note 3, at 94-109 (basing conclusion that courts have no role in defining due process on structure of Constitution, antecedents of due process clause, and Court's early due process cases). It is important to note that the issue at stake here is not merely the appropriate level of judicial review. Under the positivist approach there is absolutely nothing for the courts to review, because the legislature is afforded unfettered discretion.

Correlates of joining a sexual harassment class action.

“…Despite these criticisms, however, employment discrimination class actions also have the potential to both empower plaintiffs and promote social change (Garth, 1992). Although it would be naı ¨ve to suggest that discrimination class actions are typically brought about to achieve socio-political change as opposed to a desire for obtaining injunctive relief, these are not mutually exclusive goals (Redish & Larsen, 2007). Discrimination cases are typically client-as opposed to lawyer-initiated lawsuits involving more active and involved class representatives than other types of class actions, such as social welfare and antitrust cases (Garth, 1992).…”

“…The opt-out procedure requires minimal time and effort on the part of a potential class member, and generally involves returning a form indicating the choice not to join (Redish & Larsen, 2007). Failure to return the form, however, gives passive consent to joining the class, which has the potential of creating a ''faux'' class of individuals with varying self-interests in the claim (Redish, 2003).…”

“…Class actions, where a few named representatives civilly litigate on behalf of a larger group of members, are a generally accepted and common avenue for employees to litigate discrimination cases related to race, sex, color, national origin, and religion protected by Title VII (Epstein, 2003; Garth, 1992; Goldman, Gutek, Stein, & Lewis, 2006; Hensler, 2001; Redish & Larsen, 2007). However, following the certification of Jenson v. Eveleth Taconite Co (1993), the first sexual harassment class action to reach federal court, the appropriateness of class action as a vehicle for claims of sexual harassment in the workplace raised significant controversy (Healy, 2005; O’Brien, 1994).…”

“…However, following the certification of Jenson v. Eveleth Taconite Co (1993), the first sexual harassment class action to reach federal court, the appropriateness of class action as a vehicle for claims of sexual harassment in the workplace raised significant controversy (Healy, 2005; O’Brien, 1994). While class actions have been criticized in general for limiting litigant autonomy and violating due process (Hensler, 2001; Redish & Larsen, 2007), sexual harassment class actions have also received specific criticisms regarding potential procedural concerns, namely the extension of “pattern or practice” theory of liability to harassment claims (see Healy, 2005 for an extensive discussion beyond the scope of this article).…”

Losing power safely: Explaining the variation in dictators' responses to anti‐regime protests

“…To determine whether a dictator received punishment in accordance with the due process of law, we focused on the existence of a trial. This is because due process of law typically includes rights of notice and hearing—in other words, the right to be presented with the reason for punishment and given the opportunity to refute it (Reddish & Marshall, 1986). Punishments can also be categorized by legality (Kleinig, 1973), and it may, therefore, be valid to judge whether the dictators were punished in accordance with the due process of law by focusing on the legality of the punishment process.…”