a) Procedure v. Substance
i) Substance: claim underlying the suit
(1) What are my rights?
(2) Examples of substantive harms:
(a) Loss of opportunity
(b) Damage to reputation
(c) Future earnings
(3) Substantive issues
(a) Does the govt have authority?
ii) Procedure: care about fairness
(1) How do I apply my rights?
(2) Procedural harms:
(a) No chance to explain yourself
(b) Don’t know what the charges are
(c) No notice:
(i) Issue of ex ante/post procedural: want a chance to be heard before sanctions are imposed
(3) What procedure do people expect?
(a) Notice: who is filing? On what grounds?
(d) Chance to challenge: hearing, obtain representation, decision maker
(e) Accessibility: location, cost, timing
(g) Timing of hearing
(h) Respond in kind
(4) Procedural Issues
(a) Due process
b) Rule of law: what does it mean to respect the law? (see Walker)
i) General rule is an unconstitutional statute is an absolute nullity and may not form the basis of any legal right or legal proceeding, yet until its unconstitutionality has been judicially declared in appropriate proceedings, no person charged with its observance under an order or decree may disregard or violate that order
(1) No man can judge in his own case however righteous his motives
ii) Procedure tests rule of law b/c it’s a mechanism by which other laws get made
iii) Temptation to override rule of law when you believe you are in the right
c) Pleading v. motion
i) Pleading: documents that HAVE to be filed in every case
(1) Frame litigation: used to narrow and focus issues to file
ii) Motion: request to issue an order
(1) Not required, not necessary part of lawsuit
2) Four requirements for valid judgment:
a) Notice: constitutional requirement
b) Personal jurisdiction: constitutional requirement
c) Subject matter jurisdiction: constitutional requirement
d) Venue: not constitutional requirement, just statutory
3) Four questions for exam question:
a) What is a fair process?
i) Must consider if structure can be implemented with govt’s budget
ii) Think about if expensive, what’s the cost?
b) Where can you sue?
i) Geographic location: personal jurisdiction
ii) Federal or state court: subject matter jurisdiction
iii) Specific court: question of venue
c) Which law applies: federal or state?
i) Erie doctrine tells which law applies
d) Can you sue again?
i) Question of finality or preclusion
4) First question: what is a fair process
i) Tensions between fairness and complexity, time-consuming and expensive
a) Due process: parties whose rights are to be affected are entitled to be heard and must be first notified
ii) Procedural law is intended to safeguard those vested rights in life, liberty and property that are guaranteed by the U.S. Constitution. The 5th Amendment provides the “no person shall be…deprived of life, liberty or property w/out due process of law; nor shall private property be taken for public use, w/out just compensation.” The 14th Amendment makes these provisions applicable to the states
(a) Hamdi v. Rumsfeld (2004): due process demands detainees be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker
(i) Presumption in favor of govt’s evidence is not unconstitutional so long as presumption remained a rebuttable one and fair opportunity provided
(2) Procedure can trump substantive rights
(a) Walker: procedural response to substantive claim
(i) Shows trans-substantive nature of procedural rules: they apply to all types of cases, not just sympathetic civil rights cases
ii) Two kinds of due process:
(1) Procedural: notice, opportunity to be heard
(2) Jurisdictional: challenge to finding limiting principles and good framework
(a) Generally, all exercises of jurisdiction have to be applied to MC test
(1) Is life, liberty or property at stake?
(a) Liberty is protected more strongly than property
(2) Is the state involved in some way?
(a) Only state has due process requirement
(3) Is there notice? Rule 4
(a) Is method of notice reliable?
(b) What are alternative methods?
(4) Is there a fair hearing?
(a) Apply Matthews test
(b) Issues of federalism: can’t have meaningful hearing in a court so far away from or bias against you or so expensive
iv) Tension b/t governmental autonomy and due process: determining the costs of due process and the rights of indvls
(1) Goldberg: due process cannot be easily defined and is not the same in every instance, but the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner
(2) Matthews v. Eldridge test: must weigh various factors when determining due process
(a) Three factors to balance:
(i) Private interest affected by official action
1. Interests at stake examples: liberty, l
ing or general agent, or to any other agent authorized by appt or by law to receive service of process
(6) Waiving service under Rule 4(d): the D has the right to waive service; if the don’t waive it they have to pay the costs of effecting service including attny’s fees, but if they do waive service they get an extended period of time to reply to the complaint
iv) Usually dismissed w/o prejudice, so can try again
(1) Why bother then?
(a) Set-back for other side to start all over again
(b) Time and money
(c) SOL might run out
(d) Delay always going to help D: example is deterioration of memory
v) Examples that violate notice:
(1) Wage garnishments when no chance to contest before notified employer
(2) Bank account impounded where no notice, no opportunity for hearing,
(3) Statute allowing pre-hearing lien in tort action
(a) No govt interest
vi) Examples that don’t violate notice:
(1) Mitchell held no due process violation when:
(a) When there is real judicial discretion in producing orders
(b) Bond is posted to show good faith
(c) Quick hearing after seizure
i) Due process requires:
(1) Adversary system: a lawyer for each side totally devoted to that side’s cause
(a) Precept is that the clash of proofs is most likely to come to 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
(i) Chance to appear in person
(ii) Neutral and passive decision maker/impartial adjudicator
1. Expected to refrain from making any judgments until the conclusion of the contest
2. Prohibited from becoming actively involved in the gathering of evidence or settlement of the case
3. Ensure evenhanded consideration of the case
4. Convince society at large that the judicial system is trustworthy
(iii)Parties are responsible for evidence presentation: chance to present oral evidence and cross-examine witnesses
1. Rely on lawyers to advocate, assemble and present testimony