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Any legal system that purports to respect the rule of law must ensure the fair and impartial adjudication of disputes under the law. Classic accounts of the rule of law assume that courts should resolve such disputes. However, this is too narrow. All forms of adjudication, not just by courts, need to be fair and impartial. In any event, no one could claim that courts or entities by that name are always fair and impartial. All legal systems need a guarantee of fair and impartial adjudication that applies to all forms of dispute resolution under law.

A dispute arising under law is a claim by one individual or entity that another individual or entity has acted in a manner contrary to law. Most commonly, such disputes revolve around historical facts. For example, A claims B did something that, if true, means B acted contrary to law; and B denies that he did what A claims. Sometimes adjudicators must resolve conflicting claims about the applicable law. And sometimes they must resolve both the facts and the law. Disputes arising under law often pit one private person or entity against another. Other times they involve a dispute between the government and a private person or entity. The difficulty of ensuring fair and impartial adjudication is greatest in this latter context, when the government squares off against some nongovernmental person or entity.

The U.S. Constitution contains two strategies for securing fair and impartial adjudication. One is reflected in Article III; the other is found in the Due Process Clauses of the Fifth and Fourteenth Amendments. Part I of this Article describes these constitutional strategies and explains how each was originally envisioned as securing fair and impartial adjudication of disputes under law. Part II describes how each strategy, over time, has failed to provide a general guarantee of fair and impartial adjudication. Part III concludes with some tentative thoughts about restorative measures that might correct, at least to some degree, the deficiencies that have emerged in assuring fair and impartial adjudication over time.


Constitutional Law | Law | Rule of Law