Due process is due for a reboot. Its current doctrinal framework was forged in a very different era, when adversarialism supplied the dominant constitutional account of procedural fairness. So long as the legal system affords litigants formal opportunities to assert their rights—notice, a hearing, the chance to present evidence, the possibility of appeal—due process is satisfied. But that adversarial conception fits poorly with the realities of twenty-first-century civil justice. In courthouses throughout the nation, the majority of cases now pit institutional plaintiffs—typically a bank, debt buyer, corporate landlord, or government agency, nearly always with lawyers—against individual defendants without them. Sharp asymmetries in resources and access to legal help, high rates of default judgment, and the routinized processing of claims at scale have become the norm, leaving little room for individualized court attention or genuine adversarial testing. The result is a widening gap between constitutional aspiration and litigation reality, especially for millions of litigants whose housing, financial solvency, and even physical liberty are at stake. Due process remains formally intact but practically sidelined, and a deteriorating civil justice system sits largely beyond the Constitution’s reach.

This Article seeks to adapt twentieth-century due process to twenty-first-century litigation realities by offering a new vision of due process we call “mediated adversarialism.” We do so by recovering and synthesizing multiple strands of thinking that have been present for decades but never fully absorbed into doctrine. Most notably, soon after Goldberg v. Kelly inaugurated the current due process framework with its canonical description of the elements of fair process, Judge Henry Friendly and Professor Jerry Mashaw—building out earlier critiques by Roscoe Pound and other leading expositors of the due process tradition—began to question whether adversarial opportunity alone could vindicate due process values, especially in areas of mass adjudication. For Friendly, the answer lay in a more active, investigatory judicial role that departs from the classical model of a passive, neutral judge. For Mashaw, it lay in the managerial design, oversight, and continuous improvement of adjudicatory systems. This Article argues that due process can renew itself only by bringing those investigatory and managerial conceptions into its frame. In a civil justice system defined by pervasive self-representation, sharp asymmetries across the two sides of the “v,” and high—and, indeed, constitutionally intolerable—rates of decisional error, due process must concern itself not only with the procedural opportunities available to litigants with the capacity to seize them. It must also attend to the institutional processes courts design to ensure fair and accurate adjudication at scale.