A Workable Substantive Due Process

Hon. Timothy M. Tymkovich, Joshua Dos Santos & Joshua J. Craddock*

It is now cliche to say that substantive due process is controversial. Yet it remains true that few legal doctrines have been more contentious in the last century or so in American law. It is also true, and not coincidentally, that this area of law is not just one of the most contentious, but one of the most confused. This Article seeks not to add to the controversy, but to explain the mire, and to propose a path across it.

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© 2020 Timothy M. Tymkovich, Joshua Dos Santos & Joshua J. Craddock. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Hon. Timothy M. Tymkovich, Chief Judge of the United States Court of Appeals for the Tenth Circuit. I gratefully acknowledge the assistance of Walter H Hawes IV, Law Clerk to the Hon. Timothy M. Tymkovich (2019).

Joshua Dos Santos, Juris Doctor, Stanford Law School (2017); Law Clerk to the Hon. Timothy M. Tymkovich (2017); Law Clerk to the Hon. Raymond Kethledge (2018).

Joshua J. Craddock, Affiliated Scholar with the James Wilson Institute on National Rights and the American Founding; Juris Doctor, Harvard Law School (2018); Law Clerk to the Hon. Timothy M. Tymkovich (2018).