Alex's Wooley Civ Pro Notes

Alex's Wooley Civ Pro Notes - Alex More Civil Procedure –...

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Unformatted text preview: Alex More Civil Procedure – Wooley Spring ‘06 1/17/06 There will be an outline provided before every class (about 20 minutes before), as well as hard-copies. If you plan on using a hard-copy and haven’t picked one up, come get one after class. I. Introduction to Civil Procedure A. What is Civil Procedure? Procedure is about the enforcement of rights and obligations created by the substantive law – torts, property, criminal law, in other words, legal rules that govern conduct in people’s day-to-day lives. A key mechanism for the enforcement of non-criminal rights and obligations is the civil lawsuit. Civil lawsuits allow ordinary people and corporations to use state power to protect their rights under the substantive law. By obtaining a judgment, a π can force a Δ to provide monetary compensation. If Δ doesn’t pay voluntarily, Δ’s property can be seized and sold to satisfy the judgment. So civil procedure is about the rules that govern the exercise of state power through civil lawsuits. B. Basic Themes Two key questions: Now civil procedure raises two basic questions. The first is how do we balance the need to effectively enforce rights and obligations with the need to reduce the risk of error. Because human beings are fallible, no matter what rules we set down there’s always going to be a risk that the wrong party will win. So one of the key questions in CP is how much risk of error do we tolerate. The more risk averse we are, the more expensive and time-consuming the process becomes. At some point, risk-averseness becomes so expensive as to make the enforcement of laws and rights impractical. Example: we could try each jury case 100 times, and give π and Δ an “average” jury verdict in those 100 trials, but nobody would dream of something so outrageous because it would grind the system to a halt. So how do we balance our desire to see the right party win, to minimize the risk of error, with the practicalities of dealing with the cost of procedure? A second question focuses on how we allocate power to enforce substantive rights and obligations. Should judges make all the decisions or should juries be involved? And if judges and juries are to share power, what issues are appropriately left to the jury and what issues should the judge decide? Now CP also implicates the allocation of judicial power between states and between states and the FG. Example: if a Texan hits a pedestrian in Oklahoma, where should the Oklahoman go? Should she seek compensation in federal or state court? Which state court? These are all questions of how we allocate power between state courts and between state and federal courts. Civil procedure also provides us an opportunity to discuss the role the lawyers play in the civil justice system....
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This note was uploaded on 08/28/2008 for the course LAW 433 taught by Professor Wooley during the Spring '08 term at University of Texas.

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Alex's Wooley Civ Pro Notes - Alex More Civil Procedure –...

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