The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


My talks on "The Myth of Substantive Due Process" [UPDATED]

Why both progressives and conservatives are wrong about "the due process of law."


The modern doctrine of substantive due process is problematic in many ways. For one thing, it allows judges to pick and choose among the "rights . . . retained by the people" to identify those "fundamental rights" that will get super-duper scrutiny, and those "liberty interests" that can be restricted by legislatures with impunity. But problematic as well is the very common critique of substantive due process made by some modern conservatives. According to that critique "the due process of law" is satisfied when a statute is duly enacted and signed into law. At that point, "the due process of law" only ensures a fair judicial procedure to ascertain guilt or innocence of an accused for violating that law. The substance of the law is supposed to be immune from judicial scrutiny.

In my talk, The Myth of Substantive Due Process, I explain both why modern substantive due process is objectionable and why the conservative critique is inconsistent with the original meaning of "the due process of law." I will be giving this talk on

  • Wednesday, January 30th at noon at Harvard Law School in Room WCC 1015 (1585 Massachusetts Ave);
  • Wednesday, January 30th at 7:00pm at Yale Law School, Room 127; and
  • Thursday, January 31st at noon at Penn Law in Gittis 213.
  • Thursday, February 14th at noon at the University of Chicago Law School
  • Friday, February 15th at noon at Northwesterrn Law
  • Friday, March 29th at noon at St. Thomas Law in Miami.

Food will be served at all the events and the public is welcome to attend.