…in terms of procedural matters, the court perhaps has a view that procedure should be enabling and not impeding: it should enable law to be formulated and followed, enable justice to be pursued, but should not, on its own at least, impede. Procedure should not become so burdensome as to prevent or even overly discourage the appeal of the wronged citizen the judicial system. This would surely result in the failure of a citizen’s confidence in the courts as a means of redress in much the same way that the presence of corrupt court or court officer. It seems to me in fact that in a perfect world presided over by a utopian judicial system (if that is not too much of a contradiction to bear) the procedure and the procedural burden on the part of the litigating parties as well as the court itself should become transparent, almost disappear.
But by transparency, I don’t mean clarity. Students of the law, lawyers, spend a great deal of time looking for clarity. This seems to me the way the issues are typically presented. This I believe is how you are presenting them also, as a kind of enlightenment story, where the law becomes increasingly sophisticated over time. Court decisions continually refine the law; they keep up with technology (more or less). Yes, occasionally they reverse. But overall they adjust and develop specificity. It seems to me that while this is true enough, perhaps generally speaking, it is less true in procedural matters than with other areas of the law—torts, etc. To me, unique in procedure, as stated, is the additional burden of the court not to make participation in the court system too onerous. Though we have not discussed this, I am guessing that this is a serious issue for appellate courts in framing their decisions, and particularly U.S. Supreme court (the cases we have read aside from the hypotheticals have been exclusively U.S. Supreme court decisions). This is also I’m guessing on the mind of the book editors, judging by what they choose to excerpt.
Transparency in terms of procedure and appellate courts and the cases we are reading, etc., it seems to me, involves enabling and not preventing lower courts from trying matters of substance. This emerges from language that the court uses in an effort to restrict application of its decision. Opinions are full of language like Justice Fields in the end of Pennoyer, “To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by anything we have said…”
And this in a sense is what is particularly interesting about procedure: there is a conflict and fundamental tension between an appellate level court’s need for a just, fair, reasonable, opinion and the effort by that same court’s need to allow lower courts to use its authority and discretion without an undue burden of matters of procedure.This tension is present in other areas of the law (torts etc.) but more hidden. In this sense procedural can serve to provide a view of this aspect of the law. This is not to say, btw. that procedure is necessarily best murky. Certainly I can appreciate that people really do like procedure— something sure, something definite that every party, can count on. I do appreciate that the rules that the court sets up, for example service for jurisdiction: domicile, consent, property, etc. are balancing states rights etc. but it may also be that an appellate court’s decision to leave ambiguity—not spelling things out—is in some respects most important to ensure a functioning lower level court and ultimately a functioning judiciary.
To bind this with the other comment regarding Borges Chinese encyclopedia and taxonomy during your red-green pepper lecture: “There are 175 kinds of animals in the kingdom. The first are animals belonging to the king, the second are 4-legged animals, the third are furry animals, the fourth are fabulous animals, etc.” I think the guy with the corona and lemon example had it right, lemons with the corona, lemons with the lemons. Categories need be neither exclusive nor permanent. A stable judiciary, and particularly in terms of procedure, is built on allowing the possibility of heterogeny. We may try to define it and pin it down, but its in the empty spaces, what its not saying that all the action is really taking place, and the ground for future decisions. What’s not being said in procedural cases we’ve looked at is admittedly far more difficult to pin down. My suggestion is that is mostly present in the substance of the case which emerges in language, in your very natural remark for example of the “evil daughters,” and also in the justices’ attempts to segment their opinion with language, like the above in Pennoyer and the constant use of conjunctives “but to the extent…”, “but we do not mean to assert that..” expressions of the court’s awareness of its power… no?
