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prior probability
Nice point by on today’s FedSoc substantive due process panel: we’re all looking at the same evidence, but we’re telling different stories about the evidence
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prior probability Jan 3
Great question by Prof John Harrison (): what constitutes a deprivation of rights WITH due process?
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prior probability Jan 3
chimes in: “procedural due process” is redundant; “substantive due process” is contradictory
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prior probability Jan 3
Prof Nathan Chapman () poses a great question in reply to — What kind of (historical) evidence should matter?
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prior probability Jan 3
Prof Chapman makes a key point: all laws embody a tension between the right of a community to self-govern and the right of each individual to be left alone
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prior probability Jan 3
For my peart, I agree with Prof Chapman that the tension between collective action and individual liberty is unavoidable
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prior probability Jan 3
Given this inherent tension between collective action and individual liberty, how should courts police the boundary between “unreasonable” and reasonable laws?
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prior probability Jan 3
This is why I prefer the old “clear mistake” doctrine over the rational basis test, but that said, is there any real difference between either approach?
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prior probability Jan 3
asks: what is the original public meaning of “due process of law”?
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prior probability Jan 3
My question to is: whose meaning and when? 1791 or 1868?
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prior probability Jan 3
Replying to @RyanWilliams314
For what it’s worth, there were no women or racial minorities on the panel
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Lawrence Solum Jan 3
5th = 1791, 14th - 1868.
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prior probability Jan 3
Right, so which temporal “public meaning” is binding on us today? Or are there two rival “public meanings” depending on whether a State or federal law is being challenged on due Process grounds?
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Lawrence Solum Jan 3
I haven’t done work on this, but my tentative view is that the 5th governs federal action & the 14th governs state action. I’m agnostic about whether the OPMs differ.
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