Civil Procedure Outline
*Wisdom, Frankfurter, Holmes, Cardozo, Ursin(?) —definitely know these guys!*
INTRODUCTION
A. The Structure of Process
Linear decision-making structure to in judicial proceedings
-AàBàC
-A= Dispositive Issue
-B= Reasoning (how the court goes from issue to judgment)
-usually begins with controlling rule of law and ends with holding. In between are policies.
-some judges are rule-oriented while others are policy-oriented (care more about the consequences of the decision)à logical v. policy method undertaken
-Logical Method: rule oriented with fidelity to established rule of law
-Policy Method: Norm-Oriented where judges attentive to norms, “felt necessities of the times”
-sometimes a judgment may employ both of these methods (a policy method judge is also attentive to rules of law, but that isnot the only factor)
-C= Judgment
-logical and policy methods describe permissible scope of judicial function in Anglo-American law
B. Western Tradition
-law is a system of rules of conduct prescribed by a legitimate authority—the legislature by a statute, the citizens by a constitution, or the judge by a holding in the case
-law is positive: enacted by the proper authority
-Blackstone
-divided law into lex scripto (statutory, written, positive) and lex non scripto (unwritten, common law)
-said equity is the spirit of all law
1. Notions of Equity
-equity is foundation for policy-method
-equity is not law, but rather what law aspires to be (i.e. fairness, mercy, rightness)
-Aristotle – both equity and law are necessary for justice. Equity compliments law.
-corrective equity: corrective measure, counterweight to law. compensates for defects in the law due to the law’s generality or universality
-sometimes law is too general to provide just resolution to specific casesàthis suggests policy-making or policy-discovery
– Kentish v Newman (judge gave $ to kids not brother and sisters) went against law
-uses policy making or at least policy discovery
-interpretive equity: equity as an interpretive tool aiding in construction and application of extant lawàthis suggests policy-vindication
-saw law and equity as distinct components of legal system, each necessary for administration of justice
2. Equity in History
-In Roman times, judges used to be more inclined to accept interpretive rather than corrective equity; corrective equity criticized for giving too much discretion to judges
-.
– Blackstone: warned that w/corrective equity, there can be no established rules of equity without destroying its very essence and reducing it to positive law… but at the same time, decisions related to equity cannot be left totally to discretion of judges
-Blackstone: said that w/ interpretive equity, there are times when a judge must deviate from the usual meaning of words in a statute in order for justice to be served (where words bear none, or an absurd signification if they are literally understood).
-England
a. persons who felt they had not received justice in a court of law petitioned directly to the king. Gradually king appointed the Chancellor to handle equity petitions. Chancellor established “Court of Chancery” (“Court of Equity”).
b. John Selden’s critique of corrective equity: “ tis all one as if they should make the standard for the measure of the chancellor’s foot”
c. Chancellor took steps to rein in equity by limiting its corrective feature and establishing the maxim that “equity
m (and sometimes the compassion) of equity
2. Judicial Policy-Formation
-3 types:
(1) policy-making
(2) policy-discovery
(3) policy-vindication
-traditional view is that judges engage in policy-making
-***policy-making= judges adhere to their personal preferences or values
-this is a problematic view of policy because:
1) it suggests that policy-making is a very private affair (ignores judge’s public commitments, ignores corporateness of judicial decision-making process)
-decisions should represent policies of the entire judicial institution, not just the judge
2) judges are so acculturated that it hard to believe that their values are actually foreign to society. Thus, their decisions are inevitably in sync with some segment of society
3) if the decision is in sync with some portion of society, then it is actually policy-discovery
-policy-making, in reality, is an act of judicial assertion. It occurs when a court embraces a norm in its decision that the community is unwilling or unable to accept. Imposition of norms on a community that is unwilling or unable to accept them. (i.e. court and community moving in opposite directions)
–e.g. Warren Court- Brown v. Board of Education
-court was activist not because it made up policies, but because it favored values that were not in sync with a region of society (the South)
–e.g. Roe v. Wade—country not ready to accept decision
