By Tom Pryor. Full text here.
This Note uses Turner v. Rogers as a case-study to demonstrate how the Court’s procedural due process analysis, as laid out in Mathews v. Eldridge, is deficient. The application of the Eldridge balancing approach can appear arbitrary when its outcomes are compared across similar situations or when analyzed in depth in a single instance. Nowhere is this more evident than in cases dealing with the right to an attorney. This Note makes the case that the Eldridge factors insufficiently guide and constrain the Court and thus are inadequate in advancing the original purpose of the Due Process Clause. On a doctrinal level, this Note suggests that the Court’s procedural due process analysis should mirror its substantive due process approach. This would force the Court to undertake a more rigid analysis of procedural due process cases and would properly frame those issues in terms of the underlying rights that are at risk. On a practical level, the Note proposes a series of steps that policy makers, lawyers, and academics can take to expand access to counsel and to encourage the Court to alter both its ruling in Turner and its approach to procedural due process cases as well.