Robert G. Bone (University of Texas School of Law) has posted Procedure, Participation, Rights (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
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This essay is a contribution to a symposium on Professor Ronald Dworkin’s forthcoming book, JUSTICE FOR HEDGEHOGS. The essay focuses on the idea of procedural rights. It asks whether procedural rights make sense in American civil litigation, where “right” is understood in the Dworkinian sense of limiting, resisting, or trumping arguments based on furthering a collective social goal or improving aggregate welfare. Professor Dworkin addressed this question in a wonderfully rich and provocative essay published in the early 1980s, entitled “Principle, Policy, Procedure.” I take a critical look at Professor Dworkin’s argument and use the opportunity to explore why it so difficult to articulate a coherent theory of procedural rights. In particular, Part I of my essay argues that the best interpretation of American civil adjudication is likely to recognize procedural rights with a curious property: the right must be defined at its core in a way that somehow yields to arguments of high social cost at the same time as resisting those arguments in the way a right is supposed to do. Part II describes Professor Dworkin’s theory, explains how it meets the definitional challenge, and criticizes its main elements. Part III examines two competing theories of procedural rights and explains why they are also problematic. The essay concludes by calling for more work on the nature of procedural rights in civil litigation. There is much at stake. If there is no coherent account of procedural rights, then radical reforms justified on utilitarian grounds should receive much more favorable attention than they have to date.
