Due Process Disaggregation

One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of due process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As the Court explained when announcing the modern approach to procedural due process in Mathews v. Eldridge, the due process calculus must be focused on “the generality of cases, not the rare exceptions.” A more granular approach to due process rules, the Court emphasized in a series of rulings between 1976 and 1985, would place an undue administrative and financial burden on the government. This aspect of procedural due process law no longer matches the on-the-ground realities of many procedural regimes. In recent years, the space between “the generality of cases” and “the rare exceptions” has become populated with subgroups of individuals whose procedural needs are different from those of the typical individual. Whether due to subgroup members’ capacities and circumstances, their stronger stake in the proceedings, or their unusually complex cases, subgroup members forced to rely on one-size-fits-all procedures may be deprived of truly meaningful procedural safeguards. At the same time, in ways that were unimaginable just a couple of decades ago, technological developments have enabled government agencies to identify and accommodate subgroup members at a comparatively small additional cost. Based on these developments and the inherently flexible nature of due process, it is time to move beyond the Court’s narrow focus on “the generality of cases” and its preference for one-size-fits-all procedural rules. To be sure, not every subgroup warrants additional procedural safeguards. However, rather than dismissing subgroup members as “rare exceptions” unworthy of procedural accommodation, courts should evaluate the due process rights of subgroups under the traditional Mathews balancing test. This refinement of due process doctrine is necessary to ensure that members of due process subgroups— and not just average or typical individuals—are afforded the fundamentally fair procedural protections guaranteed by the Due Process Clause. © 2014 Jason Parkin. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Assistant Professor of Law, Pace University School of Law. The author appreciates the insightful comments and suggestions of Benjamin Barton, Noa Ben-Asher, Molly Biklen, Edward Cheng, Bridget Crawford, Andrew Lund, Vanessa Merton, Louis Rulli, Michael Sant’Ambrogio, Jeffrey Selbin, Peter Strauss, David Super, Stephen Wizner, Noah Zatz, and participants in workshops and conferences at the University of Pennsylvania Law School, American University, Washington College of Law, Temple University, James E. Beasley School of Law, and the Southeastern Association of Law Schools New Scholars Colloquium. Terence Sullivan provided invaluable research assistance.