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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
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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. (2)
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This note was uploaded on 02/15/2008 for the course LAW 1000 taught by Professor Minda during the Fall '06 term at St. Johns Duplicate.

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