Principles of Civil Procedure
Author:
Clermont, Kevin M.
Edition:
5th
Copyright Date:
2018
17 chapters
have results for Principles of Civil Procedure
Chapter 1 Introduction 274 results (showing 5 best matches)
- Okay, so what is this structure that the course aims at exposing? It is the constitutional structure within which the law constructs its civil procedure. The constitutional space occupied by the architecture of civil procedure rests on a foundation of the extant constitutional powers. But the permissible bounds of the space—the compound’s floor, outer walls, and roof—emerge from the limits imposed by the Constitution. The architect has a lot of freedom in designing civil procedure within that space, but must use the existing powers strictly within those imposed limits. As the teacher and students explore and dissect the architecture of civil procedure in this particular course, they come to comprehend more generally how the rest of the legal system operates within the constitutional structure. The laws of torts, contracts, property, and crime all work the same way, but the key ideas converge and emerge in the course on civil procedure.
- It is in this principal sense that civil procedure serves the rest of the law school’s curriculum. And it is this focus on structure that makes civil procedure one of the most central of legal subjects in American academia—while in Europe, where civil procedure encompasses just the mechanics, it is considered an inferior academic subject, with the course sometimes relegated to a post-graduate practice program.
- The civil side of law is extraordinarily significant, of course. Civil procedure is too—even as a subject of instruction in law school. Every lawyer of any sort can profit from a sophisticated knowledge of civil procedure, just as any law student can make much more sense of his or her other courses through an attentive study of civil procedure. As Karl Llewellyn once said, “Everything that you know of procedure you must carry into every substantive course. You must read each substantive course, so to speak, through the spectacles of that procedure. For what substantive law says should be means nothing except in terms of what procedure says you can make real.”
- A teacher might view civil procedure as a key part of society’s array of dispute resolution mechanisms, along with settlement, arbitration, and the like. Courts provide their procedure as a default set of rules, one that will govern only if some other set of procedures does not trump by operation of law or by parties’ choice. Because almost all grievances conclude without judicial adjudication, the teacher could justifiably view the “alternative” procedures as numerically more important than traditional civil procedure. Thus, the course could serve as a social study of dispute resolution.
- Now, I am not talking about constitutional doctrines that directly form part of civil procedure, such as the Seventh Amendment’s preservation of a civil jury right for federal courts. In fact, civil procedure, unlike criminal or even administrative procedure, does not contain much constitutional law of this kind in its foreground.
- Open Chapter
Chapter 2 Stages of Litigation 579 results (showing 5 best matches)
- The resultant pattern of procedure for the federal system is as follows: (1) The legislature has very broad power to regulate the courts’ civil procedure (e.g., Federal Rules of Evidence, which was enacted as a statute by Congress). Although the courts themselves have overlapping power to regulate their own civil procedure by lawmaking, either by judicial decision or by court rulemaking, they act at the sufferance of and subject to the ultimate control of the legislature (e.g., res judicata), and they must stay out of certain areas (e.g., subject-matter jurisdiction). (2) The courts also have power to regulate their own civil procedure by rulemaking pursuant to a proper delegation of legislative power (e.g., Federal Rules of Civil Procedure, which was promulgated by the Supreme Court under the Rules Enabling Act). (3) Finally, the courts have power to regulate their own civil procedure by lawmaking within a narrow inherent judicial power to conduct the courts’ own business (e.g.,...
- To govern the stages of litigation, the lawmakers seek to develop optimal procedures, acting in response to the felt needs for dispute resolution but also in pursuit of society’s outcome and process values. Most of the resulting law of procedure lies outside the Federal Rules of Civil Procedure and other judicial exercises of the various authorizations to issue court rules, having been generated by legislatures as statutes or by courts in the course of ordinary decisionmaking.
- The Appendix of Forms to the Federal Rules of Civil Procedure (“Federal Forms”) contains sample documents that illustrate the Rules’ formal requirements.
- Contempt is a disregard or disobedience of public authority, such as a court order. There are two types of contempt proceedings, criminal and civil. The difference, it should be noted, is not necessarily in the nature of the contemptuous act but in the proceedings consequent thereto—the same contemptuous act might give rise to either or both types of proceedings. Distinguish the two as follows: Criminal contempt proceedings serve the interests of society by punishing and deterring deliberate disrespect of public authority; accordingly, the procedure is relatively protective of the defendant’s rights, but an unconditional fine or a fixed jail term is the form of sanction. Civil contempt proceedings more directly help the party who would benefit from the contemnor’s obedience; accordingly, the form of sanction is either (1) a compensatory payment from the contemnor to such party or (2) a conditional fine or imprisonment that need not be paid or further suffered by the contemnor if he...
- Just as for most of the mechanics of civil procedure, federal law governs the mechanics of pleadings in any federal action, including diversity actions. That is, how to plead is answered by federal law. However, what ultimately constitutes claim and defense—the elements of claim and defense—is under the doctrine governed by state law on state-created claims. Similarly, federal law governs the burden of allegation, but state law governs the burden of proof on issues to which state law applies. All this will be treated in Chapter Three.
- Open Chapter
Chapter 7 Conclusion 141 results (showing 5 best matches)
- This book opened with a rough definition: the subject of civil procedure concerns the societal processes for handling disputes of a noncriminal sort. This book now closes with the desired end-product of study: a better suggestion of the nature of the subject. Consider separately the two words of “civil procedure.”
- The basic societal needs and values regarding outcome and process instigate the law of civil procedure for U.S. courts, inducing the lawmakers to generate certain procedural policies and rules. But there are conflicts among these needs and values and also tensions within each. The elusive goal for everyone involved in shaping the law of civil procedure is to strike a sound balance amid these conflicts and tensions.
- After this limiting by definition, civil procedure is still a broad subject. But in this book the primary focus was a narrower one, having been on the
- See generally Robert G. Bone, Civil Procedure: The Economics of Civil Procedure (2003).
- The typical civil procedure course has a narrow focus along another dimension, as it limits its consideration to
- Open Chapter
Chapter 4 Authority to Adjudicate 742 results (showing 5 best matches)
- In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of
- See Kevin M. Clermont, The Story of Piper: Forum Matters, in Civil Procedure Stories 199 (Kevin M. Clermont ed., 2d ed. 2008); Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. 390 (2017).
- See Kevin M. Clermont, The Story of Piper: Forum Matters, in Civil Procedure Stories 199, 221 (Kevin M. Clermont ed., 2d ed. 2008).
- See Kevin M. Clermont, The Story of Piper: Forum Matters, in Civil Procedure Stories 199, 230–31 (Kevin M. Clermont ed., 2d ed. 2008).
- . For the story of this case, see John B. Oakley, The Story of Owen Equipment v. Kroger: A Change in the Weather of Federal Jurisdiction, in Civil Procedure Stories 81 (Kevin M. Clermont ed., 2d ed. 2008).
- Open Chapter
Chapter 6 Complex Litigation 255 results (showing 5 best matches)
- Procedural due process is much more prominent in civil procedure, because it aims to assure a basically fair procedure when the government acts. For example, to authorize governmental action significantly impairing a person’s protected interest, procedural due process normally requires adequate notification and the opportunity to be heard at proceedings before a neutral decisionmaker.
- See generally ABA Class Actions & Derivative Suits Comm., The Law of Class Actions (2014); Mary Kay Kane, Civil Procedure in a Nutshell § 8–2 (7th ed. 2013).
- Substantive due process has a sorry history of judicial overstepping that has made it controversial and leaves it rather restricted today. The most prominent appearance of substantive due process in connection with civil procedure is the constitutional law of territorial jurisdiction. Much of that law, which you have studied to learn about the limits on a state’s adjudicating with respect to out-of-staters, rests on the substantive part of the Due Process Clause.
- This chapter on complex litigation brings the book partway back to procedure in the strict sense of the mechanics of the civil process. The big idea here is procedures that use the justification of adequate representation to extend the binding effects of a judgment to persons largely playing the role of nonparties. Procedural law in fact puts severe limits on such extension, because society wants to preserve the distinctive nature of adjudication. Moreover, the Constitution puts an absolute but distant limit on how far law can extend the binding effects. To perceive that outer limit, the focus must shift to procedural due process.
- Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 391 n.136 (1967)
- Open Chapter
Chapter 3 Governing Law 200 results (showing 5 best matches)
- the pocket of law occupied by the Federal Rules of Civil and Appellate Procedure;
- . For the story of this case, see Edward A. Purcell, Jr., The Story of Erie: How Litigants, Lawyers, Judges, Politics, and Social Change Reshape the Law, in Civil Procedure Stories 21 (Kevin M. Clermont ed., 2d ed. 2008).
- the Court attempted to afford a degree of relief by reinjecting some certainty. The issue there, as framed by the Court, was whether service of process in a diversity case shall be made in the manner prescribed by state law or in the manner set forth in
- Congress likewise could legislate on many other matters that arise in the civil procedure course. It could, for example, pass a statute to reform the territorial jurisdiction of state courts. It could found this initiative on the Due Process Clause, the Full Faith and Credit Clause, or the Commerce Clause, while buttressing its effort to cover state courts’ international litigation by reference to congressional powers over foreign relations. In the next chapter, I argue that congressional reform of the states’ territorial jurisdiction would be a good idea. However, Congress has shown next to no inclination to do anything of the kind.
- Despite the marked absence of any formula in s majority opinion—of any “endeavor to formulate scientific legal terminology” —the federal courts in the late 1930s and early 1940s seized upon a substance/procedure dichotomy as the test for choosing between state and federal law. Interestingly enough, Justice Brandeis’s opinion in makes no mention of the substance/procedure distinction that one sees in later cases; in fact, the word “procedure” never appears, and the word “substantive” appears only once in a somewhat different context. Instead, the substance/procedure test seems to have been taken from the concurring opinion of Justice Reed, particularly from his statement that the “line between procedural and substantive law is hazy but no one doubts federal power over procedure”; indeed, several of the problems of subsequent misinterpretation of seem to stem from Justice Reed’s restatement of the majority’s position.
- Open Chapter
Summary of Contents 10 results (showing 5 best matches)
Table of Contents 74 results (showing 5 best matches)
Index 154 results (showing 5 best matches)
Chapter 5 Former Adjudication 429 results (showing 5 best matches)
- Because res judicata specifies what a judgment has and has not adjudicated with binding effect, this doctrine is of universal importance both practical and systemic. It proves critical in interpreting any judgment. Accordingly, res judicata is a major and critical topic in the basic law-school course on civil procedure.
- Before turning to the direct implications for civil procedure of the constitutional doctrine, we should think about that simple but elusive lesson coming indirectly from study of full faith and credit: res judicata is nothing more or less than the body of law that defines a “judgment.” After all, a judgment is not merely a concrete embodiment of a court decision. By necessity, a judgment decides certain things and does not decide other things. Res judicata performs the job of delineating that real content of a judgment, by specifying the effects and noneffects of the decision.
- Federal Rule of Civil Procedure 13(a)
- Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 391 n.136 (1967)
- More generally, according finality before appeal naturally raises concerns about the impact of an appellate overturning. If a judgment is modified (or reversed) by appeal (or otherwise), its preclusive effects will henceforth be in accordance with its modified terms.
- Open Chapter
West Academic Publishing’s Law School Advisory Board 9 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Earle K. Shawe Professor of Law, University of Virginia School of Law
- Professor of Law and Dean Emeritus, University of California, Berkeley
- Open Chapter
Table of Cases 85 results (showing 5 best matches)
Table of Rules 109 results (showing 5 best matches)
Copyright Page 2 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- Open Chapter
- Publication Date: November 20th, 2017
- ISBN: 9781683286820
- Subject: Civil Procedure
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This Concise Hornbook covers the main points of civil procedure that any student needs to understand, and covers them briefly but thoroughly enough to be understandable. It focuses on the material covered in a typical law school course on civil procedure, tied to no one casebook. It breaks down the subject of civil procedure along the standard lines: a brief orientation; then a lengthier overview of the stages of litigation, followed by a close inspection of the major procedural problems (governing law, authority to adjudicate, former adjudication, and complex litigation); and finally some reflections in conclusion. It discusses specific problems and illustrations, with the aid of generously sprinkled diagrams and special text boxes. Special attention was given to fitting the civil procedure course's main points together to form the big picture, with each topic ending in a section on the “big idea” (separation of powers, vertical federalism, horizontal federalism, full faith and credit, or procedural due process) that the student is supposed to take from the topic.
