Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case

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Civil Procedure Class Outline

I. Procedural Due Process and Reading a Case

CASE: Goldberg v. Kelly, 397 U.S. 254 (1970), p. 1 (Mats I)
FACTS: Plaintiff (Kelly) sued the state of NY for terminating welfare benefits without prior hearing. The process of the state did provide for a post-termination hearing, however.
ISSUE: Whether a state that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the 14th Amendment.
HOLDING: (Brennan) Yes, it is a denial of due process. The state must provide an evidentiary

hearing before termination of benefits. It need not take the form of a judicial or quasi-judicial

trial. Recipients also must be allowed to consult with counsel, present evidence orally, and confront and cross-examine adverse witnesses. Counsel need not be provided at pre-termination hearing. Decisionmaker's conclusion as to a recipient's eligibility must rest solely on the legal rules and evidence adduced at the hearing and must be impartial.
REASONING: Welfare benefits are determined to be property by the fact that it is what you use to survive and property is security, just a welfare check is. Court does not discuss that it is property (and therefore a property right exists) because both sides stipulate that it is. There is an important governmental interest in having a pre-termination hearing by helping relieve the anger and resentment of the underclass in a number of ways (see below). McElroy balancing idea says that the state has less to lose by providing the pre-termination hearing and paying benefits while this goes on than the citizen does by losing benefits before the hearing (the citizen would be the bigger loser here if we denied this right).
SIGNIFICANCE: Due Process Clause protect right to hearing before deprivation of welfare benefits. Another issue is that due process must be provided in a meaningful manner.
Was Mr. Kelly deprived of life, liberty or property? (from Eskridge hand-out):

1. Both the Court and the Litigants focused ONLY on Kelly’s right to property (welfare) and not the right to a minimal condition of life. Eskridge points out that this then allowed for the welfare system’s reform in 1996.

2. Defendant, Goldberg, did not question that it was a property interest because Goldberg was interested in the system being reformed. Black’s dissent in Goldberg questions welfare benefits being considered property. Black thinks that the determination of the amount of process tied to welfare entitlements is best left to the legislature. See also Critiques of Goldberg.
3. The Bitter with the Sweet argument: If the State creates the entitlement why can the legislature not also condition it on procedures short of due process? This wouldn’t be an issue if the court had decided this was a liberty issue. If you’re going to rely on the statute as evidence of your entitlement/property, it becomes a question as to what it exactly promises.
II. The Values of Procedure
A. Values of Added Procedure (as discussed in class and in hand-out):

1. Dignitary - (Michaelman article - see below) – Human beings must be treated with respect, they are not just institutional instruments

2. Participatory/Enfranchisement - State decisions with participation and an impartial decisionmaker are more legitimate (LaTour article - see below)

3. Libertarian – (John Stuart Mill) - We valorize the utility of the individual and the individual’s ability to maximize their own value themselves, a somewhat utilitarian type of perspective

4. Utilitarian - Overall Cost-Benefit analysis (Posner/Epstein- see below Sec. III) vs. Reduction of particular kinds of costs & risks (Simon/ Brennen- see below Sec. IV)

5. Truth – Participation/Process theory of truth – as a result of legitimate process

6. Rule of Law – Transparency of legal results and the security in knowing your entitlements are protected (Reich) – Anti-corruption idea
B. Values served by access to litigation [Michaelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights, p.44 (Materials I)]
1. Dignity- reflects concern for the humiliation of loss of self-respect a person may experience without the right to litigate
2. Participation- litigation is one of the modes in which persons exert influence or have their wills counted

3. Deterrence- litigation is a mechanism for influencing or constraining individual behavior

4. Effectuation- litigation is an important means through which persons are enabled to get what is rightfully theirs.

Dubac on Goldberg, p. 28 (Mats I)

This article is background on Goldberg. In short, the case arose out of the National Welfare

Rights Movement that had four goals: providing adequate income, dignity, justice (fair constitutional system), democracy (participation by recipients). This case was part of their litigation strategy.
Stephen La Tour, et al, Procedure: Transnational Perspectives and Preferences, p.47 (Mats I)

A detailed study of the procedural preferences of study participants from U.S. and W. Germany. Both had a greater preference for procedures allowing full opportunity for evidence presentation but disagreed on third-party decision-making control (U.S. participants supported it and W.Germans were averse to it). Most participants prefer to control the process of evidence presentation themselves while a third party controls the result. Therefore, any mechanism or device that increases control of the decisionmaker beyond the responsibility of determining the outcome can be expected to diminish the acceptability of the procedure (ex. Matthew v. Eldridge where the right to a evidentiary hearing was not upheld).

III. Critiques of the Goldberg Values and a Different Conceptualization by the Court
ATTACK ON GOLDBERG: Dubac on the Economics of Process, p. 52 (Mats I)
A. Posner’s Approach: The value of process is to achieve accurate results at acceptable transactions costs. So, whether the error costs are reduced by enough to justify the additional direct costs of a hearing.

Error Costs= Probability (Error) x Cost if Error Occurs.

Can use this equation in two situations and compare the values for which one is greater:

  1. proceeding without a hearing

  2. proceeding with a hearing

B. Epstein’s Version: Using Epstein’s version, Goldberg was “wrongly decided” and “likely to do more harm than good.” Must determine whether any additional precautions prior to termination are worthwhile, given those that are in place.

1. Two forms of error in Goldberg case:

a. Wrongful termination- Epstein attacks the natural assumption that wrongful

termination is much more likely without a hearing.

b. Wrongful continuation- Epstein also seems to believe that the likelihood of

wrongful continuation will be fairly high if a hearing is required.
2. Iron budget constraint: every dollar spent on procedural safeguards is a dollar not spent on direct payments.
3. Epstein contends that Brennan did not meet the requisite burden of proof for relying on the Constitution to establish procedural standards. Believes that Brennan should have provided a comprehensive analysis of the operational deficiencies of the welfare system. He makes no attempt to show that this requirement leads to, or even should be expected to lead to a better legal order that reduces errors.
DEFENSE OF GOLDBERG: Simon’s Response to Epstein p.60 (Mats I)
Without a predetermination hearing, wrongful termination would be a very serious problem.

1. Simon suggests that there are no alternative methods available to recipients to deter wrongful termination. EPSTEIN says the opposite- there are alternate remedies.

2. Believes tendency of the welfare system is to not protect the interests of recipients unless it is forced to

3. Legislators should not be trusted to create adequate procedures to enforce welfare rights. NY was content to allow a very arbitrary and potentially quite abusive termination process.

Simon agues that the Epstein is wrong in positing an iron budget constraint. “The cost of due process protection must be financed by reductions in benefits because the resources available to finance the welfare system are fixed” is a superstition. Simon likes the idea of applying due process to the welfare system, but suggests that procedural fairness can only be achieved if the Court were “willing to apply due process more broadly.”

Lucie White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G, p.67 (Mats I)NOTE: Eskridge really liked this article and brought it up throughout the semester.

Account of lawyer trying to do the best for her client about to have benefits terminated. The ‘fair’ hearing does not really serve to give the client dignity or meaningful participation; client has to get what she wants in her own way, by ‘disobeying’ lawyer.

Mathews v. Eldridge, 424 U.S. 319 (1976), p.78 (Mats I)
FACTS: Social Security terminates disability benefits after process of review, but without trial-type evidentiary hearing. Virginia State Agency (VSA) can reconsider decision at state level before termination along with a review performed by the SSA Bureau of Disability Insurance, then your benefits are terminated in 2 months with right to de novo review and further appeals.

ISSUE: What process is due prior to termination of benefits for Social Security disability payments?
HOLDING: (Powell) Court found for the Social Security Administration (the defendant). The process due is flexible and requires consideration of three factors:

1. The private interest that will be affected by official action;

2. The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;

3. The Government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

Powell finds that disability benefit termination process sufficiently considers these three points.
How is this different from Goldberg (discussed in class and two hand-outs)?

1. Goldberg- uninterrupted flow of government benefits is property. Mathews- government benefits treated differently than tangible property.

2. The balancing done in Goldberg is implicitly utilitarian. In Mathews, it is explicitly cost-benefit and leaves less room for dignitary, libertarian and participation values.

3. The presumption is in favor of the status quo (the process chosen by Congress or agency is presumed to be good unless shown otherwise) unlike Goldberg where emphasis on pre-termination hearing (defer to the people who know what they’re doing).


  1. The actual deprivation is very great as it could lead to the unwarrantable risk that many disability recipients will become destitute without benefits (the process moves slowly and some people lose money they desperately need over time)

  1. there are thousands of erroneous deprivations that result from the status quo process and the cost-benefit analysis may have been incorrectly done in Mathews.

  1. The stronger emphasis on the public fiscal argument from Goldberg may be unwarranted in Mathews.

  1. Mathews approach [of utilitarianism] is unsatisfactory both as employed in that case and as a general formulation of the due process review of administrative procedures. The failing of Mathews is its focus on questions of technique rather than on questions of value. . . unresponsive to the full range of concerns embodied in the due process clause.” Alternative approaches to the utilitarian/ cost-benefit approach: individual dignity of recipients, equality (are all recipients treated the same), tradition (The procedures have been tested by the body politic. Goldberg was a break from tradition, not Eldridge). Jerry L. Mashaw, The Supreme Court’s Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, p. 89 (Mats I) Basically, you need to look at more than what this case did in terms of various interests of the person and government.

Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981) p. 99 (Mats I)
FACTS: The Durham County Dept. of Social Services holds a hearing to terminate Abigail

Lassiter's parental rights to 1 of her 5 children (she is a convicted murderer and imprisoned at the time). Lassiter is not represented by counsel at the hearing.

ISSUE: Does the Due Process Clause of the Fourteenth Amendment require the state to provide counsel before termination of parental rights?
HOLDING: (Stewart) No. The Court has recognized a Due Process right to counsel only when defendant is threatened with loss of individual liberty. Because the Mathews three-part test will yield different results in particular circumstances, "we leave the decision whether due process calls for the appointment of counsel for indigent parents in termination hearings to be answered in the first instance by the trial court, subject to appellate review"
SIGNIFICANCE: Only have right to counsel when physical liberty is threatened; distinguishes Argersinger v. Hamlin, which provides right to counsel in criminal trial (no matter how serious the criminal charge is, misdemeanor or felony when jail time was involved). Gagnon v. Scarpelli was another case (used as authority here) where they used the case by case basis for determining whether you needed an attorney (prisoner parole hearing).
Argesinger v. Hamlin, 407 U.S. 25 (1971), p. 123 (Mats I)
FACTS: Plaintiff sentenced to serve 90 days in jail for concealed weapons charge, WITHOUT court appointed attorney
ISSUE: Was this a violation of his due process rights? In what situations is a court appointed attorney required for indigents?
HOLDING: Indigents have a right to a court attorney for any criminal charge that my involve jail time. Compare holding to Lassiter where she did not have a right to an attorney (Lassiter was a civil case).

Behbehani, Rand, Silverman on Lassiter, p. 142 (Mats I)
Background on Lassiter case- the relevant law, hidden facts of the case, unspoken considerations

of race and class, aftermath of the case, excluded voices in the case (affects poor, people of color,

women), and feminist theory
Also see Rules v. Standards handout
IV. The Ideology of Advocacy
Lassiter introduces the problems with the ideology of advocacy (hand-out from Eskridge). The tension is between the dual goals of neutrality and partisanship. It raises three critiques of the Ideology of Advocacy:

1) Positivist version of ideology: Citizens need neutral/zealous advocate to protect herself against state tyranny, BUT procedural protection against state tyranny risks undermining state's substantive goals (and in Lassiter, the third party rights of Lassiter's child, William).

2) Purposivist version: Lawyers need to facilitate operation of purposive system, BUT this compromises ideology (lawyers are forced into moral judgments) and may be unrealistic – are lawyers trained as social engineers? Attorneys must be mediators of the law and mediate between idea of truth and their client’s interests.

3) Ritualist version: Lawyer facilitates public ceremony symbolizing dignity, BUT lawyers subvert client's dignity, turn process into a game that's hard to admire.

William H. Simon, The Ideology of Advocacy, p. 162 (Mats I)
Principles of the Ideology of Advocacy:

2. neutrality: lawyer remains detached from client's ends, ignores the justice of the end sought.

3. partisanship: lawyer must work aggressively to advance client's ends; unlike neutrality principle, the partisan principle is qualified – there is a line that separates the methods a lawyer should or should not use.

3. procedural justice: legitimacy of a situation resides in the way it was produced, rather than in its intrinsic

properties. One acts justly by conforming to the procedure, regardless of the results.

4. professionalism: social responsibility for the development and application of certain disciplines (like lawyering) should be delegated to the discipline's practicioners.
The fullest defense of the Ideology of Advocacy rests on Positivist Legal Theory: society is a collection of individuals pursuing their own ends. The legal system is unique because it is independent of personal ends – so lawyer's role is to explain how, and under what circumstances, the state (law) will intervene in his client's life.
Two problems:

1. Procedural: state both guarantees order but also threatens to become tyrannical, so we have

procedural rules to govern the substantive pursuits of the sovereign. Unfortunately, the procedural safeguards can themselves be abused.

- For example, think of the safeguards against "tainted evidence;" we have rules to prevent state from unfairly seizing property, but the guilty use these rules to go free;

2. Tyranny of advocacy: "The problem is that the lawyer's task of explaining the impact of the legal system on the client's personal ends cannot be accomplished without some direct understanding of these ends. Yet Positivism forbids the lawyer to seek or rely on such an understanding."
Purposivist legal theory:

Society is populated by people held together by shared experiences and norms. Purpose of law is

not just to maintain order, but to coordinate citizens so as to further their common interests.

Lawyer's role is a social function designed to help advance norms through the application of the

legal technique.

- The problem is that the Ideology of Advocacy sets up an adverserial system; hard to see how this advances shared social goals.


System has flaws, yes, but judicial procedure should be viewed as a means and an end. The

ceremony of law creates the illusion of harmony. In other words, they agree with Postivists that

we can't tell what the ends of men are (what the goal of society is), but they agree with

Purposivists that such goals probably exist.

Two critiques of ritualists:

1. Ritualists, especially cynical ones, often assume that people share certain values and see

process as affirming those. But actual empirical study shows that most people are indifferent to the Ritualist values, and most people hold legal system in low esteem (ESPECIALLY those who have participated in it.)

2. While it's possible to see legal process as a religious ritual, it also shares many

characteristics of a game – and games are to decide winners and losers, whereas rituals are to create unity among the participants. Furthermore, it is not the ordinary citizen who participates in the ritual, but they are instead a pretext for it.

Kaplan, Civil Procedure- Reflections on the Comparison of Systems, p. 212 (Mats I)

German system of conferences from pleadings through trial.

1. Pleadings can be modified and submitted in any way without penalty.

2. The court knows and applies the law without relying on the parties to bring it forward.

3. All courts have duty to clarify the cause of action and lead all parties toward full development

of their respective positions.

4. Lawyers are not primary “discoverers.” Court will often see unrehearsed witnesses.

5. There are few rules excluding relevant evidence.

6. In appeals, the parties are free to add new information and invoke new legal theories.

7. Judges are career judges appointed based on government exams.

8. Lawyers are normally paid fixed fees and do not identify with clients as combatants.

9. Court costs are also fixed.

NOTE: Eskridge seems quite enamored with the German system although many of our classmates were highly critical.
I. Pleading & Filing a Complaint (Class 8)
Legal Regime Governing Complaints

I. US Constitution, Article III—federal courts are courts of limited, not general jurisdiction

A. Explicit statutory basis for subject matter jurisdiction--§ 1331, § 1332, § 1367

1. Diversity jurisdiction—§ 1332

2. Federal question jurisdiction—§ 1331 and individual federal statutes

  1. Mottley (1908)—federal question must appear on face of “well-pleaded” complaint – the federal issue must be covered by federal statute in order to arise under subject matter jurisdiction in federal court – the federal claim must be the basis of what the plaintiff seeks recovery for

  2. Absent Congress’s clear intention to commit federal statute to exclusive jurisdiction of federal courts, state courts have concurrent jurisdiction over claims based on fed law

3. Supplemental jurisdiction—§ 1367 A legal controversy that arises under the same core of facts can be brought in the same suit (a sexual harassment plus unlawful firing claim, when only one of these is a federal claim, for example) But, you cannot bring in someone under the state claim if there is no diversity

B. Subject matter jurisdiction must be pleaded by plaintiff and cannot be waived—Mottley

C. Subject matter jurisdiction is narrowly construed—Mottley, Strawbridge, Erie line

II. Federal Statutes

A. Limited federal court jurisdiction—diversity, fed question, costs, multiple corporate citizenship

III. Federal Rules of Civil Procedure (promulgated by S.Ct. pursuant to 28 USC § 2074)

A. Notice—Rule 8-9, Mullane

B. Technical requirements—Rs. 10, 8, 11 and local rules authorized by R. 83

C. Duty of honesty—R.11
Important Rules and Statutes:

FRCP 8-11

Rule 8: General Rules of Pleading

(a) Claims for relief: (1) short and plain statement of jurisdictional grounds

(2) short and plain statement of claim

(3) demand for relief--ad damnum (demand), or “wherefore” clauses

(b) Defenses: admit, deny, or “without knowledge or information sufficient to form a belief as to truth of averment (effect of denial); can admit and deny in part

(c) Affirmative Defenses: ex. contrib. negligence, res judicata, statute of frauds, statute of limitations

(d) Failure to Deny: in responsive pleading, averments are admitted when not denied

(e) Concise; Consistent: (1) simple pleadings, not technical forms

(2) Can state 2 or more alternate claims or defenses, regardless of consistency

Rule 9: Pleading Special Matters

(b) Averments of fraud or mistake shall be stated with particularity; malice/intent/knowledge—generally

(c) Denial of performance or occurrence shall be made specifically and with particularity

(g) Special damages—ex. miscarriage in car accident, as opposed to broken bones—with particularity

Rule 10: Form of Pleadings

(a) Caption, names of parties

(b) Numbered paragraphs; separate counts

Rule 11: Signing; Representations to Court; Sanctions

(b) Attorney certifies: (1) pleading is not to harass or delay

(2) nonfrivolous argument

(3) allegations have or are likely to have evidentiary support

(4) denials are based on evidence or legitimate lack of information or belief

(c) Sanctions may include directives, order to pay court, order to pay attorneys’ fees and expenses

28 U.S.C.

§ 1331: Federal question (see Mottley (1908) for interpretation of “arising under”)

--district courts have original jurisdiction of all civil actions “arising under” Const, fed laws, or treaties

§ 1332: Diversity; amount in controversy; costs (see Strawbridge (1806)—must be complete diversity)

(a) matter in controversy must exceed $75,000 AND diversity of citizenship between parties

(c) corporation is citizen of place of incorporation and principal place of business, except for insurers (also a citizen of State where insured is citizen)

§ 1367: Supplemental jurisdiction

(a) district courts have supplemental jurisdiction over claims so related to claims in action within original jurisdiction that they form part of “the same case or controversy”

(b) However, supplemental jurisdiction can’t ruin diversity under § 1332

§ 1391: Venue

(a) Diversity actions: (1) judicial district where any D resides

(2) district where substantial part of events/omissions occurred; property situated

(3) where any D is subject to personal jurisdiction, if no other district possible

(for non-diversity actions, where any D may be found)

(c) Corporation shall be deemed to reside in any district where it is subject to personal jurisdiction

II. Choice of Law in Federal Court (Class 9-11)
Choice of Forum Considerations:

1.) P’s Convenience—or inconvenience to D

2.) Values and bias—recall that federal courts are still likely to be in P’s home state

3.) Procedural advantages—American discovery and jury trials perceived as pro-plaintiff by foreigners

4.) Choice of law—but forum allowed to apply its rules of procedure (including statute of limitations)

--pre-1950s: “vested rights” idea: lex loci delicti (law in place of the tort) or lex loci contractus (law of the place of the contract) or lex land (law of the place where the property is)

--today, more complicated governmental interest balancing approach

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