CIVIL PROCEDURE OUTLINE BY ME

CIVIL PROCEDURE OUTLINE BY ME - I The Beginning of Wisdom...

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I. The Beginning of Wisdom : what is civil procedure? The rules that govern civil proceeding A. A Bird’s Eye View: Story is Kafka’s way of saying some people are excluded from the law. Power of gatekeeper = the fear we allow him to invoke. Yaser Esam Hamdi v. Rumsfeld (2004 ): dad petitions writ of habeus corpus. Writ of habeus corpus (relying on 5 th and 15 th Amendment) is complaint, petitioning to be brought in front of judge. Dad standing in as next friend. Next friend is a person who appears in a lawsuit to act for benefit of plaintiff. Next friend must show that they have enough of connection to the case. They are appearing as substitute to voice the claim of the unavailable party to bring claim they would have brought had they been able to appear. Rehearing En Banc: Case decided by the whole court. (Circuits are a group of judges). Initial hearing by 3 judge panel. Decision then circulated to other judges and. They may grant a rehearing by the whole court (or at least a larger panel) and the case is decided anew. B. Procedural Rulemaking: Litigation Process i. Complaint file ii. Defendant answers iii. Discovery: time to gather evidence iv. Pretrial conference v. The following motions can take place: motion to dismiss, motion for summary judgment, interlocutory appeal (process of higher court reviewing a pending case to determine if ruling by trial court was correct), parties can settle, or go to arbitration (mediation) vi. Goes to court (equity case, asking court not to issue damages but to order defendants to do something) vii. Judge issues judgment viii. Appeal, can affirm or reverse A. Post trial motions – motion to set aside verdict and grant new trial, motion for judgment notwithstanding the verdict, ix. Possibility to appeal to Supreme Court to affirm or reverse C. Procedural Rulemaking: From five advisory committees standing committee judicial conference Supreme Court congress. Rule of Supreme Court is not neatly defined. II. Due Process: a constitutional provision guaranteeing an accused person a fair and impartial trial. A. The first ten amendments apply to the federal government, they are the Bill of Rights. The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides "No person shall…be deprived of life, liberty, or property, without due process of law," and is applied to all states by the 14th Amendment. From this basic principle flows many legal decisions determining both procedural and substantive rights. B. Goldberg v. Kelly (1970): the question for decision is whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination
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denies the recipient procedural due process in violation of the due process clause of the 14 th Amendment? Holding (Brennan): Hearing must occur: welfare is entitlement and in that sense is property, so due process applies to this interest. (No one can be denied life, liberty or property w/o due process of law) Mathews test now has essentially nullified this case.
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