Civil Procedure I Outline

Roy Brooks

Civil Procedure

Fall 2013

STRUCTURES OF JUDICIAL DECISION MAKING

I. HOW DO JUDGES DECIDE CASES?

A. The decision-making process:

· Point A: frames the discussion, states the dispositive issue (disposes of the case)

· Point C: judgment or decision of the case

· Point B: process of reasoning by which court reaches judgment. Go from a rule of law to a holding. “but for x, the case would have been decided the other way” x=holding

B. Logical v. Policy

1. Logical method: rule-oriented. This is the traditional way to decide a case. Rationality should be deductive and value-free, as should be the law.

2. Policy method: policy-oriented. This method is based on outcomes/ consequence oriented.

C. Historical antecedents of the logical and policy methods:

· Logical method is thought to be historically the most legitimate, but we need both to achieve justice. We need something more than just following rules to get the right answer.

· Equity – foundation of the policy method. What law aspires to be- fairness, justice, and mercy. Aristotle introduces corrective and interpretive equity. Corrective- fixes the fact that universal laws cannot be it to all instances (policy discovery, making). Interpretive – uses equity as a device to aid in statutory construction (policy vindication). Equity can be too arbitrary – threatens stability of law.

· Law v. policy. The issue is: what is the proper mix between law and equity in a given case in order to achieve justice?

D. Dworkin: Policy vs. Principle

· Policy- a standard that advances some social, political, or economic goal of the community. A community’s values, cultures, or expectations.

· Principle- a standard of justice or some dimension of morality

· This distinction exists because judges cannot use policy, only principle to make decisions. Thus, we can enhance democracy when people treat one another in a principled manner. This collapses because they are the same. EX. The desire to create gender equality.

· New definition of policy- social, political community expectations. Community norms.

E. Policy making, discovery, vindication:

1. Policy Making: Judicial assertion/aggression. Judge imposes a norm on a community, which they are not ready for. Moves in the opposite direction of a community. Traditionally, thought judges only make policy but the policies become public. In addition, what happens if a community accepts the policies? No one would complain. EX. Roe v. Wade Judicial assertion- the imposition of policy on a community that is not willing to receive them. It is only legitimate to make policy when it would enhance our democracy procedurally and substantively, or to achieve justice in a particular case. EX. Brown in the South.

2. Policy Discovery: A judge uncovers unarticulated norms that are already resonating with the community, but they hadn’t established. Less activist than policy making. EX. Griswold v. Connecticut. Norms pre-exist the court’s decision.

3. Policy Vindication: promotes policies that have already advanced through a community’s existing rule of law. EX. Brown v. Board in the North. EX. 14th Amendment vindicates equality. Constitutional issues will always be policy vindication because stems from the written rule. Requires a judge to interpret authoritative text based on the text’s policies.

II. THE LOGICAL METHOD

Methodology

· The logical method constitutes the traditional method of judicial reasoning. It is deductive and value free. Thus, it makes for a gapless system of law.

· Deductive reasoning- the conclusion follows necessarily from premises. If the premises are true, the conclusion has to be true.

· The Principle of Rationality- Legal systems tend to be rational, must apply rules without personal values.

· Value of the Logical Method: Consistent, stable, legitimacy to an undemocratic institution of government. Justice is blind.

· Drawbacks of the logical method: Assumes true justice exists when the syllogism works. Does not think about consequences. The premises can be expressly false. Too often, application is not value free.

A. LEGAL FORMALISM

Ideology

· Exaggerated belief in the transparency of the text because the syllogism is not value free.

· Infused with minimalist legal doctrines that favor small government: laissez faire, substantive due process, vested property rights.

· Major premise is assumed to be value free.

1. Minimalist legal doctrines (Policies):

· Vested Property Rights- prevents redistribution by favoring property rights. Vested rights favor entrenched property and interest.

· Substantive Due Process- prevents the government from interfering with use of personal property

· Liberty of Contract- derivative of SDP. People have the right to contract in any way they choose without interference of the government.

2. Cases:

· Allgeyer v. Louisiana- Not constitutional for Louisiana to enact a statute to prohibit its citizens to do business with out-of-state companies not registered in the state.

· Lochner v. New York- Violation of SDP for the state to limit the number of hours to work per week; it interferes with individual liberty of bakery owners and bakers alike.

· Muller v. Oregon- The maximum hour law for women does not violate SDP because women are the weaker sex and need government protection. The only difference between this and Lochner is the facts. This paved the way for Brown in that the Brandeis brief presented sociological evidence to the court. There is a clear policy implication in this case.

3. Criticisms of Legal Formalism:

· Brooks’ view: Legal Formalism is a mistake. It constitutes judicial activism – policy making without the democratic-enhancement justification. Legal formalism is not the value free process of decision making that it purports to be. The syllogism is loaded with minimalist doctrines. It is a failure of the logical method.

· The most serious: it constitutes judicial activism. Usually, this is not what is argued about the Lochner Era. But there is judicial activism in the form of policy making, according to Brooks. A court only has the right to do that if it will enhance democracy.

B. SCALIAN TEXTUALISM

Textualism has a major impact on the way judges decide cases, especially at the Supreme Court level. Dictionaries are now used to define words. Thomas, O’Connor, Rehnquist have followed. He wants to keep the common law out of judicial decision making, out of constitutional and statutory law to keep their democratic fiber. He is committed to the logical method, but not legal formalism because it is loaded and not value free.

1. Tenets:

· Common law is too untethered to text, too particular, indeterminate. Stare decisis can easily be distinguished and circumvented by judges.

· Text controls how judges decide. Meaning determined by the plain, ordinary usage of the words.

· Policymaking is an illegitimate form of judicial decision-making.

· If you reduce judicial discretion, you increase consis