Foreword: The Question of Process

Authors

J. Harvie Wilkinson III, United States Court of Appeals for the Fourth Circuit

Abstract

Many in the legal profession have abandoned the great questions of legal process. This is too bad. How a decision is reached can be as important as what the decision is. In an increasingly diverse country with many competing visions of the good, it is critical for law to aspire to agreement on process - a task both more achievable than agreement on substance and more suited to our profession than waving the banners of ideological truth. By process, I mean the institutional routes by which we in America reach our most crucial decisions. In other words, process is our collective answer to the time-honored question, "Who decides?" Its vintage notwithstanding, many now doubt the salience of this query. We grow more passionate and argumentative over the achievement of substantive ends. And it is to those ends that process has become subservient. Process today lacks a disinterested life of its own. The important thing, it seems, is to advance on all fronts and prevail at all costs. The measure of process has become whether it can take us where we want to go - not whether it is the best route regardless of the destination. A vision of society where substantive outcomes alone are paramount thus threatens to engulf us. Some would say that it already has. Only by recommitting ourselves to process can we ensure the legitimacy of the outcomes themselves.

Recommended Citation

J. H. Wilkinson III, Foreword: The Question of Process, 98 Mich. L. Rev. 1387 (2019).
Available at: https://repository.law.umich.edu/mlr/vol98/iss6/2