The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview

MARTHA MINOW


3
POLITICS AND PROCEDURE

WHEN I tell practicing lawyers that I teach Civil Procedure, I usually receive one of two reactions: either "I never understood that course" or "That's the one subject I use every day in my practice." It could be that the difference between these two answers lies in whether the interlocutor is a trial attorney; actually most attorneys do not regularly go into court or gain familiarity with the procedural rules. Yet I have even had the same person give me both reactions. Why is the course dealing with the procedural aspects of civil (noncriminal) trials both so elusive and so important? One explanation stems from strong competition among potential guiding ideals or explanations for the system of rules known as civil procedure.

Hypothesis 1: Procedure is justice, so procedural rules should not bend in the face of temporary situational concerns. This view makes procedure markedly distinct from substance and from the merits of individual cases, and therefore sets procedure apart with its own separate logic and demands; ordinary intuitions are not relevant or helpful.

Hypothesis 2: Procedure is the servant of justice, so procedural rules should not stand in the way of just results in particular circumstances. This view supports the proliferation of exceptions, waivers, ambiguities, or other interpretations of procedural rules that make the rules themselves difficult if not impossible to state, know, or use apart from claims about the merits of particular cases.

Hypothesis 3: The distinction between procedure and substance is an illusion and cannot be maintained. Procedural values can generate the same amount of compelling argument as values in other areas of law. Indeed, procedural rules influence and are influenced by substantive law even as procedural rules refer to highly valued and yet competing norms apart from the substantive norms.

Any of these theories alone would be sufficient to explain the confu

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