Reich’s Due Process Revolution Can Provide Solutions To Today’s Problems

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“Greening” Law Prof Reich – Impacting Title IX and #MeToo – Dies; His “Due Process Revolution” Can Provide Solutions to Today’s Problems

WASHINGTON, DC, June 19, 2019 –  Former law professor Charles Reich, best known for his “Greening of America,” was also the father of the “Due Process Revolution” which expanded the need to provide a fair hearing to many new areas, and which can – and to some extent is – providing solutions to problems such sexual harassment litigation and the #MeToo movement, notes public interest law professor John Banzhaf.

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Reich's famous legal article - unlike the overwhelming number of law review articles which are not even cited, much less have any influence on the real world of law - did more than lead to a Supreme Court decision regarding welfare recipients.

It ushered in a new area of legal thought and analysis which Banzhaf and hundreds of other professors of Administrative Law teach today as the "Due Process Revolution."  Here's how.

The U.S. Constitution provides that no person may be "deprived of life, liberty, or property, without due process of law." Previously that protection for "property" had been confined to physical property such as real estate, stocks, etc., and "liberty" meant only not being incarcerated.

Reich helped us see that, by the mid 1960s, the "property" of most value to many Americans was not physical property, but rather jobs, entitlements to various benefits,, etc., which the law should likewise protect by providing Due Process (e.g., notice and a fair hearing) before it is taken away.

Similarly, the legal concept of "liberty" has been expanded well beyond being locked up to include the liberty to get married, have children, carry on a profession, etc. Thus the reach of the Due Process clause experienced a "Big Bang" of expansion in its application - all thanks to an activist law professor.

One area where it has already been proven enormously successful is when students are accused of date rape under Title IX on campus. When their expulsions were originally attacked as merely unfair or mistaken, courts were largely unsympathetic and deferred to the judgment of academics.

But after Banzhaf suggested that their lawyers should argue that their Due Process rights were violated by these unfair hearings, the tide turned, and increasingly courts are agreeing that expulsions or other discipline for alleged sexual assault are protected by Due Process and require fair hearings, often including full disclosure of all evidence, cross examination, etc.

Banzhaf also pointed out that a major problems with the #MeToo movement is that people are often fired first without any hearing.  As a result, many studies show that males are increasingly reluctant to mentor or even work with female colleagues.

Banzhaf has suggested that applying concepts now well accepted in Due Process law - interim suspension or other restrictions where necessary to protect others, but no final termination without a fair hearing - would go a long way towards solving both problems: unfair terminations of persons who may be innocent, and fear of bring fired without an opportunity for all the facts to come out and be heard.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418  @profbanzhaf

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