Outline: Civil Procedure

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Civil Procedure
Spaulding, fall 2009

|5th Amendment | |No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in | |cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be | |subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against | |himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without | |just compensation. | |14th Amendment, Section 1 | |All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the | |State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United | |States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its | |jurisdiction the equal protection of the laws. |

Adversary System

I. Landsman, Readings on Adversarial Justice: The American Approach to Adjudication The central precept of the adversary process is that out of the sharp clash of proofs presented by adversaries in a highly structured forensic setting is most likely to come the information upon which a neutral and passive decision maker can base the resolution of a litigated dispute acceptable to both the parties and society.

Elements of System
a. Clash of proofs
b. Party Presentation of Evidence
i. Insulates adjudicator from involvement
ii. Each litigant presents most consequential evidence iii. Dispute revolves on questions of utmost importance c. In a structured setting
i. Rules of procedure—climactic confrontation (one) and fairness of contest ii. Rules of evidence—integrity and enhance power of attorneys vis-à-vis judges iii. Rules of professional ethics—loyalty and zealousness for client with prohibitions on unfair behavior. d. Producing information

e. For a Neutral and Passive Decision-maker
i. Justifies decisions to society
ii. Free of dispositions of judges
f. That resolves disputes

II. Kagan, Adversarial Legalism: The American Way of Law a. Formal legal contestation & litigant activism characteristic of political systems where authority is fragmented and hierarchical control is relatively weak. b. Legal proceedings are costly and uncertain.

c. Highly participatory and formal (strict procedural rules). i. Parties themselves frame debate and determine which issues will be decided. Primarily parties themselves determine how far and in what manner case proceeds. d. Highly rights-sensitive yet deeply suspicious of concentrated power. i. High expectations but weak state.

ii. Spaulding: federal government’s power pales in comparison to power of centralized bureaucracy of other countries.

|Modes of Policy Implementation and Dispute Resolution | |Organization of decision making |Decisionmaking style...
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