Monday, June 18, 2007

Prof. Patrick Borchers recently posted a paper entitled Jones v. Flowers: An Essay on a Unified Theory of Procedural Due Process, on SSRN. The paper will be published in volume 40 of the Creighton Law Review. You can access a copy of the paper by visiting Here is the Abstract:

Procedural due process has always been seen as having at least three independent strands. One is the jurisdictional or minimum contacts strand. That strand, derived from the Supreme Court's decision in International Shoe Co. v. Washington, requires that a defendant in a civil case have at least a minimal connection to a state before he can be forced to defend an action there. Another is the fair procedures or administrative due process strand. That strand, emanating principally from the Supreme Court's Mathews v. Eldridge decision, requires that for additional procedures to be mandated that they must be cost-justified relative to the private party's interest and the increased accuracy of the resolution of the case. Finally, there is the fair notice strand to which the Supreme Court's 2006 decision in Jones v. Flowers is addressed. The Jones decision actually imports some of the cost-benefit analysis of the fair procedures strand. Moreover, the reasonableness component of the jurisdictional due process strand can be recast along the same lines. Thus, it may be possible to have a coherent and unified theory of procedural due process.


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