This chapter provides a thematic and doctrinal framework for studying civil procedure.
The materials examine how adversarial assumptions about the party autonomy influence the
design of judicial procedures;
they also explore the ways in which adversarial decision making differs from other
methods of resolving disputes.
Another theme we consider is that of federalism:
the relation between the federal government and its national court system,
and that of the fifty states and their separate judicial systems.
The materials then offer a nuts-and bolts picture of a civil action,
tracing a lawsuit from the commencement of the suit and the service of the summons to the
entry of judgment and subsequent appeals.
As you read these materials, keep in mind the historical context of your studies.
Procedural doctrine and political conditions. At the same time,
changes in procedural doctrine have influenced public expectations about such important
concepts as fairness, participation, and justice.
The materials invite you to take a critical view of civil procedure and to ask how the
rules and doctrine that you are studying can be improved.
Courts exist to provide a decision "by an agent of state power,
[of] a controversy existing between two individuals (or the State and an individual),
by rational (not merely personal) considerations,
purporting to treat on justice and law (i.e. the community's general sense of order)."
Wigmore, The Judicial Function, in Science of Legal Method.
Although this definition contains some question-begging elements that need definition
themselves, it provides a starting point for understanding the judicial system in the
United States. For now, it will suffice to recognize the following points about courts:
The judicial process deals with actual controversies between real parties and also helps
to express abstract values for society.
Courts draw on public power to resolve controversies.
This resolution proceeds not arbitrarily but according to some standards of general
applications. These standards are applied in a proceeding that follows some fixed lines
set out by a system of rules known as procedure.
In resolving the legal disputes that are presented, courts apply two types of law
substantive and procedural. Other courses (such as Torts and Contracts) deal with
the substantive rights and duties that regulate the everyday relationships among
individuals and between individuals and institutions. This course, by contrast,
will explore the procedures used by courts to resolve disputes about those substantive
rights and duties. Our focus will be on how attorneys in the United States frame their
cases in order to bring them properly before a particular court,
and how the case proceeds from its commencement until a judgment is reached and enforced.