@lawscholar  
Nice point by @RyanWilliams314 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



prior probability
@lawscholar

Jan 3  
Great question by Prof John Harrison (@UVALaw): what constitutes a deprivation of rights WITH due process?


prior probability
@lawscholar

Jan 3  
@RandyEBarnett chimes in: “procedural due process” is redundant; “substantive due process” is contradictory


prior probability
@lawscholar

Jan 3  
Prof Nathan Chapman (@universityofga) poses a great question in reply to @RyanWilliams314 — What kind of (historical) evidence should matter?


prior probability
@lawscholar

Jan 3  
Prof Chapman makes a key point: all laws embody a tension between the right of a community to selfgovern and the right of each individual to be left alone


prior probability
@lawscholar

Jan 3  
For my peart, I agree with Prof Chapman that the tension between collective action and individual liberty is unavoidable


prior probability
@lawscholar

Jan 3  
Given this inherent tension between collective action and individual liberty, how should courts police the boundary between “unreasonable” and reasonable laws?


prior probability
@lawscholar

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?


prior probability
@lawscholar

Jan 3  
@lsolum asks: what is the original public meaning of “due process of law”?


prior probability
@lawscholar

Jan 3  
My question to @lsolum is: whose meaning and when? 1791 or 1868?


prior probability
@lawscholar

Jan 3  
For what it’s worth, there were no women or racial minorities on the panel


Lawrence Solum
@lsolum

Jan 3  
5th = 1791, 14th  1868.


prior probability
@lawscholar

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? @FedSoc


Lawrence Solum
@lsolum

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.

