Legal Aspects of Procedure Research Paper

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1. The Subject Matter Of Procedure

Procedure addresses the work of adjudicatory processes that are based in courts. While the subject may appear dry (if not boring), the rules of any procedural system are interesting because they must respond to difficult political and social questions.

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Traditionally the world of procedure has been divided into three categories—civil, criminal, and administrative. For example, civil cases are those in which no criminal penalties (often but not exclusively incarceration) are sought. Administrative law proceedings are those in which (typically) the government is a party and the case is processed in administrative agencies devoted to a particular subject matter rather than in generalist courts. Courts in turn are defined as institutions that handle civil and criminal cases. However, these lines are blurring. For example, while civil disputes often involve private citizens, in a substantial proportion of civil cases the government is a party, as either plaintiff or defendant. Concerns about overcrowded court dockets have prompted some commentators to recommend that mandates to agencies be enlarged—turning more agencies in essence into specialized courts.

What is shared among civil, criminal, and administrative proceedings is that someone (an individual, a group, or a representative of the government) claims that another has violated a legal norm. In all three categories a third party, empowered by the state, is called upon to determine the validity of the claim— whether a legal right exists (‘liability’) and what form of response (‘remedy’) is appropriate. In all three categories, the parties have some degree of autonomy to fashion the contours of the dispute and yet are also limited by conventions and rules. In all three categories, questions exist about the power of decision-makers, the constraints imposed upon them, the kinds of sanctions or remedies that might be imposed, and the ability to seek reconsideration of the decisions rendered. And, in all three categories, the procedures are assessed as to whether they are fair and efficient.

What makes for fair and impartial judgments? Should everyone have a ‘right’ to an authoritative adjudication, or may courts insist that litigants settle or resolve cases by other means? If trials are permitted, should they be decided by judges (professional adjudicators) or by lay juries? If judges are central, how is their impartiality and independence assured? Does the gender, race, or ethnicity of a decision-maker matter to the perceived or actual fairness of the outcome? Should state subsidies, including free lawyers, be provided for those too poor to litigate to facilitate access to justice?

Of course, some of the questions for proceduralists are more technical, such as: What injuries are grounds for a lawsuit? How does one actually start a case? In which court? Whom should one sue? Yet responses to even these questions depend on judgments about the role of government, the degree to which individuals should be permitted autonomy as rights seekers, and the harm that litigation itself can inflict on unwilling participants. Therefore, rules of procedure embody, express, and help create values and attitudes about what constitutes fair decision making by, or through, the powers of the state. Procedure is laced with questions of legal policy and political philosophy.

In some countries, those questions are also framed in constitutional terms. For example, the US Constitution deploys the phrase ‘due process of law’ in its Fifth and Fourteenth Amendments, guaranteeing protection against deprivations of life, liberty, or property. Also detailed are rights of jury trials for criminal defendants and for civil damage litigation, as well as rights of counsel for criminal defendants. Other countries expressly address these and yet other rights, such as providing criminal defendants with a right of translation into their own language.

The set of problems facing proceduralists is rich, not only because rules of procedure inevitably implicate basic social and political values. Procedure is also compelling because those rules intersect with all the major problems of contemporary life. Under the umbrella of ‘cases’ can come the full range of social problems—disputes over personal assets, and familial relationships; claims of physical injuries from products like asbestos or tobacco; disagreements about commercial contracts made or breached; regulatory arguments about possible hazards to the environment or the illegal pricing of products; assertions of violations of state or federal statutes providing for civil rights, consumer information, or personal security. In short, Procedure must address the theories, aspirations, and values that animate procedural systems; the kinds of disputes that may prompt litigation; the means by which lawsuits are started and stopped, as well as what happens in between and who can participate; consideration of the identity and characteristics of the participants (parties, lawyers, witnesses, judges and juries); the powers of decision makers; what the structure of courts is, has been, and how it might be changed; and what role courts in turn play in a particular governmental structure or as trans-national institutions.

2. Lawsuits: From Injuries To Litigation

When thinking about Procedure, it is important to remember that not all moments of discord result in the filing of lawsuits, let alone in the kinds of proceedings described in newspapers or the trials that are televised. In fact, individuals and groups disagree a lot without ‘naming’ the problem a conflict. In contrast to popular assertions, for example, that the US is awash with litigation, scholars of dispute resolution instruct otherwise. When injured, individuals have a variety of responses (from ‘lumping it’ and never seeking redress to ‘claiming’ injury and then ‘blaming’ others); a numerically small percentage of such occurrences results in the actual filing of civil, criminal, or administrative proceedings. How often people file suit, in turn, is related to what forms of redress regulatory and social welfare regimes provide, and to conceptions of what role courts should take in a given polity. The role litigation plays in countries therefore differs.

Moreover, litigation should not be equated with adjudication through trial. In some countries, of cases that are filed, very few conclude by trials. Take the federal courts of the US as an example. Of 100 civil cases filed in the year 2000, about a third will be resolved by judicial rulings in advance of trial; most of the remaining two-thirds will be concluded through settlement. Trials will begin in only three or four cases.

The rate of trial in the US declined during the last decades of the twentieth century, as courts built into their processes a ‘pretrial phase’ that becomes the focus of lawyering and that offers a means of dispute resolution without trial. Many countries have given litigants rights of access to information in advance of trial; ‘discovery’ and ‘disclosure’ are terms of art in the US to refer to such pretrial exchanges. Further, negotiation, mediation, and arbitration (sometimes called ‘alternative dispute resolution’ or ‘ADR’) are concurrent options—or requirements—throughout the course of disputes.

Some procedural systems are styled ‘inquisitorial,’ by which is meant that judges determine a good deal of the shape of the inquiry. Others, described as more ‘adversarial’ and associated with common law countries, authorize parties (or more accurately their lawyers) to determine the scope of a controversy, to develop the information about the events at issue, and to frame legal theories. During the twentieth century, many common law countries revamped their procedural systems—as did civil law regimes—such that the two forms of adjudication are moving closer to each other.

In the US, federal rule makers undertook major reorganization of the procedural system in the 1930s. They spoke about aspirations for a simple, accessible justice system and they crafted a ‘trans-substantive’ set of procedures, by which it is meant that the same rules were to be used, regardless of the kind of case. By the 1970s, some litigants, judges, and lawyers became concerned that the system created decades earlier had generated its own problems. They complained about lawyers exploiting pretrial opportunities for personal gain and to inflict misery on opponents. Critics charged abusive discovery, incivility, and adversarial excess. Some reformers urged lessening reliance on lawyers by reeducating clients to look for resolutions of disputes without, or with less lawyering. Others proposed rules aimed at constraining lawyers.

Many common law countries turned to judges to take more responsibility for the shape of lawsuits. Judges and other court personnel began to take an active role in scheduling and monitoring the pretrial phases of cases—to move cases along, to urge settlement, to attempt to supervise attorney Behavior. Judges came to act as ‘managers,’ working with lawyers to set time frames in which parties may be added or dropped from cases, to resolve disagreements about the relevance of information sought from opponents, and to urge that disputes be ended by mandatory settlement conferences, court-annexed arbitration, and mediation. Procedures once termed ‘extrajudicial’ have been built into rules, and are now regular features of civil and criminal processes.

The term of art—in the US, England, Wales, Canada, and Australia—for such work is ‘case management’ but the content of such work varies by country. In the US, a good deal of the focus is on managing lawyers. In this respect, rules of procedure are connected to rules of professional conduct. Rules of lawyering ethics and rules of procedural systems increasingly overlap as both are aimed at structuring the Behavior of attorneys.

Late twentieth-century reforms seek to lower the costs of process and to shorten the time to decision. Some reformers believe that these changes will help lower-income individuals gain access to courts. Critics view the rules as less friendly to small claimants because of limitations on discretion and flexibility. These debates point to a more general feature of procedural rule making. Procedural reforms of any era need to be understood as not ‘only’ about procedure; they are related to the creation of professionalized judiciaries, to country-specific social movements, and to institutionalization of courts as corporate actors within governments. Moreover, rulemaking is often driven by ‘repeat player’ litigants who have the economic wherewithal and the political interest and insight to seek to shape procedural regimes.

3. The Many Configurations Of Lawsuits

Given the diversity of problems, not surprisingly the configurations of lawsuits vary. Some cases involve two disputants seeking attention from a single judge, readily envisioned as a pyramidal triangle, with the judge at the top and the two disputants on either side. Other litigations are multi-party conflicts, for which a Calder mobile offers a better visual image; the many parties realign depending on what issue is to be determined in what forum.

Many questions have emerged, including: Should one-on-one cases be paradigmatic of adjudicatory processes? How should aggregate litigations affect one’s understanding of the purposes and forms of adjudication? The costs of lawyers to individuals make pursuit of remedies expensive; evolving norms of judicial process discourage labor-intensive attention for ‘small’ claims. Further, the paradigmatic car crash, sometimes assumed to involve individual disputants, is often a dispute controlled by two insurance companies rather than by individual litigants. Many commentators urge that such conflicts be turned over to ‘no-fault’ administrative systems that would provide compensation according to schedules and that other ‘small cases’ be resolved through lower cost and lower visibility processes located in administrative agencies.

At the opposite end of the spectrum are large-scale cases, some involving tort law arising from accidents (like airplane crashes) and others related to allegedly defective or injurious products (such as diet drugs, nicotine, and asbestos). Some large-scale cases involve contracts and consumer claims, from shareholders of companies to purchasers of goods; and yet others relate to group-based rights claiming (about issues involving environmental harms to air, food, or water or the fair treatment of women). Such litigation also raises questions of whether administrative models are more appropriate modes of disposition than adjudicatory ones.

Given widespread allegations of injury and hundreds or thousands of lawsuits involving similar or the same parties, courts have devised means, both formal and informal, to process cases en masse. Procedural systems respond through mechanisms such as ‘consolidation,’ ‘class actions,’ ‘interpleader,’ ‘bankruptcy,’ ‘multi-district litigation’—all procedures designed to assist in reaching resolutions across categories of claimants.

4. A Variety Of Venues

Not only do lawsuits vary in size and scale, they also go to an array of places for resolution, both public and private. Once a decision is made to file a lawsuit, a choice often exists about where to file a lawsuit. Some courts have ‘general jurisdiction’—they can handle all kinds of cases. Other courts have ‘limited jurisdiction,’ tied to a particular subject matter or amount in dispute.

In some instances, the jurisdictional grants overlap, and courts may have ‘concurrent jurisdiction.’ When more than one venue is available, common law systems give the power to the parties to decide the court in which to proceed. Upon occasion, defendants argue that plaintiffs have made the wrong selection—either because a particular tribunal lacks authority over the subject matter of the litigation (‘subject matter jurisdiction’) or because the tribunal has no power to compel a particular defendant to appear and defend or is an inappropriate place to rule on the merits (‘personal jurisdiction’ or ‘forum non conveniens’).

More institutions than courts are available for dispute resolution. Many government agencies are also quasi-courts. In the US for example, the Social Security Administration, the Equal Employment Opportunities Commission, and the Immigration and Naturalization Service process thousands of disputes annually, far in excess of the number decided by the federal court system. Further, court systems in court- houses or in administrative agencies often do not exhaust the set of options. Again using the US as an example, Indian tribes have court systems as well. Given the overlap among courts and the demographic mobility of the citizenry, inter-jurisdictional cooperation among state, federal, and tribal systems has begun to develop.

An increasingly global economy makes international decision-making tribunals ever more important to litigants within the US. One project, based at the American Law Institute, is to develop trans-national rules of procedure to which countries or litigants might subscribe voluntarily. Another approach is to create universal jurisdiction for certain kinds of offenses; the International Criminal Court, a product of the Treaty of Rome, exemplifies that effort.

Governments are not the only source of courts. Associations may decide to establish their own ‘private’ courts and may compel those who contract with them or those employed by them to rely on such tribunals in lieu of proceeding in state-based courts. Further, governmental agencies and courts may also urge litigants to devise means of resolution of disputes without adjudication and may contract for services with ‘private’ institutions. During the second half of the twentieth century, a number of private providers of dispute resolution have come to the fore. As the market of private providers of dispute resolution services has expanded, some worry that publicly based and financed systems may lose support as those with the resources go elsewhere.

5. Tiers Of Decision Making

If cases are decided within formal court or administrative systems (by judges, juries, or hearing officers), losing parties may have a ‘right’ to appeal to a higher court, which has (often limited) authority to review decisions made below. In many jurisdictions, there are three or four tiers of decision-makers, some working at the trial level, which has ‘original’ jurisdiction, and others in an appellate system. Some appellate systems are obliged to review lower court rulings when presented with an appeal, whereas others enjoy discretion to decide whether to review cases and if so, which ones. At each stage, parties typically have the option to settle or withdraw.

The concept of ‘preclusion’ bears on these tiers of decision making. The idea is that at some point, procedural systems prohibit further consideration of a problem—because participants have (knowingly or inadvertently) ‘waived’ their rights by failing to raise certain claims in a specified time or because participants have made and lost claims along the way. ‘Res judicata,’ ‘estoppel,’ ‘double jeopardy,’ and ‘statutes of limitations’ are some of the legal terms that capture these principles of closure and finality. Yet most procedural systems also have safety hatches—means by which to reopen and reconsider issues because of new information, changing circumstances, or the passage of time. Child custody decisions are typically subject to reopening, and in criminal cases, the availability of ‘habeas corpus’ marks a narrow window of reconsideration. Herein lies an exemplary tension of procedural rules, attempting to capture both the impulse toward closure and the recognition of limited knowledge and the imperfections of judgment.

6. The Demography Of The Court House

During the twentieth century, the demographics of the participants of the legal system changed. Women gained juridical rights to bring lawsuits, as did peoples of many colors. Further peoples of all colors and both genders gained rights of access to the professions of lawyering and judging. These individuals prompted professional interest in the demographics of the court house to understand more about the racial, ethnic, and gender composition of judges, jurors, lawyers, court personnel, witnesses, and litigants, and to learn whether the processes of decision making are affected by the demographics.

Judiciaries and/or bar associations in countries around the world convened special task forces on the effects of gender, race, and ethnicity in the courts and in the legal profession. These joint bench and bar efforts fall within a long tradition of concern about the administration of justice; judges and lawyers have engaged in studies ranging from the problems of prison litigation and the death penalty to how to handle large numbers of asbestos filings. Proceduralists thus have new knowledge and perspectives from which to consider the processes of justice.

The work on race, ethnicity, and gender in the courts has generated data about the composition of the judiciaries and the bar, as well as about the experiences of male and female lawyers of all colors, and more limited information on litigants. Most of the reports conclude that court systems—like the culture in which they exist—reflect stereotypic assumptions about race, ethnicity, and gender. Women judges and women lawyers are often in dramatic minorities as contrasted with the number of women litigants and, in systems with juries, of women jurors. Women and men who are lawyers and judges, and peoples of differing colors report different perceptions of the relevance of gender, race, and ethnicity to processes of adjudication. Studies in the US have found that women attorneys believe that gender affects both process and outcome, and describe its effects on their professional lives and the legal system. In contrast, male judges and lawyers are less likely to report gender as relevant to the administration of justice or the legal profession. Studies of minority judges and lawyers have parallel data: people of color report the relevance of color while non-minorities describe its unimportance to the justice system. As a consequence of these projects, topics once considered gender and race-neutral— from the specifics of jury instructions and courtroom conduct to larger questions about the role of the judge, the nature of lawyering, and the allocation of work among the courts—are being revisited to consider how to make good on the promises of fairness.

7. The Role Of Resources

Because providing legal process costs money, takes time, and requires energy, the role of resources is critical to the study of procedure. Rules that treat all individuals as similarly situated belie the reality that some of us are richer than others, some of us have more access to help than do others, and some of us are more likely to be harmed than are others. Procedure must therefore consider how rules affect the costs of lawyering and the impact of rules that shift costs from one side to the other or that provide for government subsidies for lawyers, investigation, expert witnesses, filing fees and other costs associated with litigation. Economic analysis of many areas of law has become commonplace. In this arena, such inquiries consider the incentive structures created by procedural rules, the means by which adversaries can inflict costs on opponents, the mechanisms by which bargaining can occur, how rules about sanctions for failure to settle affect differently those who are ‘risk prone’ and those who are ‘risk averse,’ and the impact of attorney fee shifting rules. Constitutional and political theorists, analyzing the meaning of the ‘equal protection’ and ‘due process’ guarantees, consider whether the government has an obligation to make courts readily accessible; if so, for what categories of claims, and how, given economic disparity, to craft rules to implement such principles.

8. The Constant Questions

Despite all the variation in the resources of litigants, the kinds of cases, the people and problems involved, the courts systems, and the procedures themselves, the underlying problems that procedural systems have to solve are the same: Who can seek redress? For what kinds of injuries? Requesting what remedies? Based on what kind of information? Presented to what decision-maker? With any review or possibility of reconsideration? Obviously these questions do not admit to easy, unvarying answers; ideas about procedure are deeply rooted in the social–political fabric, and the issues central to procedure are value-laden. The questions to be addressed include: Why have process at all? Why care about how a decision is made? If process is required, how much should be provided? Are opportunities to be heard adequate? How formal should a procedure be? How expensive should it be? Who should pay? How free should the parties be to initiate lawsuits? Who gets to litigate and who is foreclosed? And what about the decision-makers— what kinds of information should be required prior to decision? What remedies should courts be able to order? How much power should judges have, and when should that power be constrained? When may decisions be reconsidered, and when should they be considered ‘final’? Over and over again, procedure returns to these basic, and central, issues.


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