I’ve written a couple times before about the Lago Agrio / Chevron litigation in Ecuador, from questioning why the plaintiffs’ political tactics drew so much criticism but the same standard wasn’t applied to Chevron to commenting on how one side won an appeal by ignoring the Supreme Court’s advice on how to write a brief. It’s a fascinating case not because it’s a David–versus–Goliath battle, as these plaintiffs are backed by a hedge fund, but because of the wide variety of important issues the case raises.
This post isn’t really about the case, though. Anyone who cares to follow the case need only follow Letters Blogatory’s Lago Agrio tag. This post is about one of the important issues raised by the case: where does due process end?
The phrase “due process of law” first appeared in a version of the Magna Carta published more than a century after the original Magna Carta was enacted, with “due process of law” roughly replacing the phrase “lawful judgment of his equals or by the law of the land.” The phrase, however, didn’t mean much in the practice of British law, which is why James Madison, who drafted the due process clause found in the Fifth Amendment, said that the phrase wasn’t by itself sufficient to protect any of the “great rights” like trial by jury, freedom of the press, or “liberty of conscience.” That’s part of why we have those First, Fourth, Sixth, and Seventh Amendments, too.
“Due process” encapsulates the very essence of the rule of law, and so the phrase has shaped American law for generations. As every lawyer learned in their Constitutional Law class back in law school — but which is rarely discussed outside of the legal profession — there are two types of due process, procedural due process which defines the steps the government has to take before criminally punishing you or enforcing a civil judgment against you, and substantive due process, which reflects the rights so fundamental to individual freedom that no procedure could adequately justify their taking.
Substantive due process occupies far more of our national debate because it touches upon the perennial obsessions about reproductive rights and homosexuality. But, as a matter of the application of law, procedural due process touches upon far more lives on a daily basis. In the court system, procedural due process — and the specific procedural protections Madison spelled out for criminal prosecutions in the Sixth Amendment (speedy trial, right to counsel, etc) and civil lawsuits in the Seventh Amendment (jury trial, rules of common law) — touches upon every criminal case from the moment of an arrest and every civil lawsuit from the moment it is filed.
It is sometimes, for example, a violation of due process to apply principles of estoppel to parties that weren’t a party to civil litigation in the first place. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (“Some litigants—those who never appeared in a prior action—may not be collaterally estopped without litigating the issue. . . . Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position.”). Similarly, just earlier this week the Supreme Court held that it was a violation of the Sixth Amendment for a criminal defendant to have ineffective assistance of counsel while plea bargaining.
But it’s due process, not limitless process. At some point the court system has rightly or wrongly reached its conclusion.