The Scales and the Abacus: Judicial Error and the Possibility of Justice in the Administrative State

The paper documents the emergence of a 'balancing jurisprudence' in a line of twentieth century American constitutional cases dealing with substantive and procedural aspects of due process in the context of economic regulation. It argues that balancing is a characteristic instance of post-transcendental justice, rooted in the move from a conception of liberty as natural adjunct of the human condition to human artifact. The implications of this for ethical conceptions of judicial error are then explored.