Processes of the Law: Understanding Courts and Their Alternatives

By Call, Jack E. | Justice System Journal, May 1, 2004 | Go to article overview

Processes of the Law: Understanding Courts and Their Alternatives


Call, Jack E., Justice System Journal


Processes of the Law: Understanding Courts and Their Alternatives, by Judith Resnik. New York: Foundation Press, 2004.

Not so long ago, a very good friend of mine (a clergyman) was accused by a former parishioner of fondling her during counseling sessions. By her own account, she had fallen in love with my friend and did not object to the sexual contact. Then she claimed to have had a "spiritual awakening" that made her realize that her pastor had taken advantage of her emotional vulnerability. As a result, she "filed charges" against my friend with the church.

The church in question has a set of procedures to be followed when charges are filed. If initial efforts by church leaders to reach a reconciliation between the pastor and the person bringing the charges fail, the charges go to a mixed panel of clergy and laity who investigate the charges (much like a grand jury) to determine if "reasonable grounds" exist to refer the charges for a trial. The charges against my friend went to a church trial.

The trial was presided over by a church bishop. The church (which at this point was "prosecuting" the charges) and my friend were represented by clergy specially appointed for the trial. Usually these clergy counsel have had no special training for these roles. My friend hired an attorney (at great expense) to help prepare his case, and the church engaged an attorney to help the clergyman who "prosecuted" the case. The lawyers were allowed to be present during the trial and could assist the "clergy counsel," but they were not permitted to speak during the trial.

The "jury" consisted of thirteen members of the clergy. Conviction required nine members of the jury to conclude that clear and convincing evidence existed in support of a charge. My friend was found guilty of some charges and was acquitted of others. Church procedure provided for an appeal to a mixed body of clergy and laity, a body that also ruled against my friend.

Those of us close to my friend were devastated by what we considered a clear injustice. For reasons not limited to our affection for and confidence in our friend, we believed unwaveringly in the innocence of our friend.

As a person trained in the law myself, I could understand the logic behind much of the church procedure. It seemed clear to me, for example, that the process had been constructed by a lawyer. However, because I felt that the process had resulted in error, I found myself examining the process, looking for flaws that could explain the error. One thing was evident: when it comes time to make determinations that greatly affect people's lives, the process used to make those determinations is of tremendous significance.

For people who agree with this last statement, Processes of the Law is a book of great relevance. The book is about legal processes and is written by Judith Resnik, a Yale law professor and leading authority in the field. While the book is very short (only 146 pages of text), it is surprisingly comprehensive. The book discusses in a meaningful way such varied topics as civil actions, criminal actions, choice of law (to be applied to a given dispute), remedial powers (of the tribunal resolving a dispute), institutional forms (domestic tribunals, administrative agencies, alternative dispute resolution, and international tribunals), participants (juries, judges, lawyers, disputants), and rulemaking processes. It is remarkable enough that Resnik is able to discuss such a broad range of topics without leaving the reader feeling cheated, but she also manages to do this while incorporating a substantial amount of relevant empirical data and identifying important procedural trends.

Much of the empirical data greatly inform Resnik's points. For example, in her discussion of administrative adjudication, Resnik demonstrates the great importance of these processes by noting that in the 1990s, the Social security Administration alone disposed of about 500,000 cases a year, compared with only about 260,000 civil cases that were filed in federal courts each year. …

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