INTRODUCTION TO CIVIL PROCEDURE

INTRODUCTION TO CIVIL PROCEDURE - INTRODUCTION TO CIVIL...

Info icon This preview shows pages 1–3. Sign up to view the full content.

View Full Document Right Arrow Icon
INTRODUCTION TO CIVIL PROCEDURE Course Outline, 1997 - Professor Cavanagh By Benjamin Neidl _____________________________________ (I) THE ROLE AND FUNCTION OF THE COURTS (A) WHAT THE COURTS MAY CONSIDER/POWER OF THE COURTS (1) The judicial power of a court is limited to deciding controversies. A. Webster Eisenlohr v. Kalodner (F. Court of Ap., 3rd Circuit, 1944) A trial court judge was found to have exceeded the limits of his power by conducting an independent investigation prompted by his disapproval of the parties’ settlement of the dispute. “Unless changes come to pass which radically alter the purpose of judicial power, a judge should not engage in such investigations. (P sued preferred stockholder on a technical manner, and settlement was reached when P offered to simply buy the stock from D. Trial judge investigated a possible violation of securities laws) (2) Courts may consider a rule of law not briefed or argued by either party of a litigation to order a new trial if so doing is in the interest of justice. A. Frummer v. Hilton Hotels (Supreme Court of NY, 1969) A trial court was held to be within its authority in ruling that a defense raised by a defendant (contributory negligence) was invalid under English law (the location of the tort here was in England), and allowed the English law to control, even though the plaintiff never objected to the defense and neither party ever briefed this aspect of English law for the courts. A new trial was ordered. (3) It is not proper for a judge to consult experts on an ex parte basis. A. Arnstein v. Porter (Federal Court of Appeals, 1946) In a copyright case involving pieces of music, a judge played the two tunes in question for people in his office without the consent or knowledge of the parties. No particular holding here, but a strong condemnation by an appellate judge. (B) JUSTICIABILITY Courts will only consider justiciable controversies. A justiciable controversy is one
Image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
in which a present and fixed claim of right is asserted against one who has an interest in contesting it. A justiciable controversy is a “real” dispute between appropriate parties, rather than hypothetical or moot disputes. Justiciable controversies are definite and concrete. (1) Political Questions are non-justiciable. Some key questions in determining whether a question is political. --Is this decision better handled by another branch of government? --Are there manageable judicial standards? --Is the Matter within judicial discretion? --Can this matter be decided without crossing or insulting other branches? --Has this policy already been made by another branch? A. Baker v. Carr (US Supreme Court, 1962) A reapportionment of the Tennessee state legislature districts was held as not posing a political question. So, matters of state governmental organization are not non-justiciable.
Image of page 2
Image of page 3
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern