Preface

• Pages: 5-6
• Author: Samuel Issacharoff

v

PREFACE

Students typically enter law school expecting civil procedure to

be the most removed topic from their prior experiences with the law.

Contracts, property, criminal law, even torts—once they get beyond

the name—all correspond to the way we structure our lives and form

our expectations of the rules of conduct in our society. Of the

traditional first-year courses, only civil procedure seems alien to the

lived experiences with the law.

While civil procedure shares with all aspects of law its technical

wizardry, one aim of this book is to dispel the sense of distinctiveness

of the realm of procedure. No doubt, even in the era of liberal

pleading, there are daunting technical issues regarding such matters

as preclusion, reconsideration, aggregation, and a host of other

exacting lawyers’ tools of the trade. But there is also a deep intuitive

logic that commands the field, aiming to find a balance between the

need for finality and the a spiration for accuracy, weighing the

competing considerations of fairness and equity against those of

efficiency and cost, and casting legitimacy in outcomes as a function

of the integrity of the processes used to arrive at a result.

The book begins with the question of due process. The object of

structuring the presentation in this fashion is two -fold. First, there

is the inescapable fact that the tools of constitutional balancing, most

clearly set forth in Mathews v. Eldridge ,

1

are now firmly entrenched

not only in what are clearly understood as procedural cases, but even

in the hardest cases of o ur time s, such as defining the obligations

owed enemy combatant s, as in Hamdi v. Rumsfeld.

2

Second, it is to

highlight the centrality of proper procedure in familiar debates about

the rule of law. At some point, all societies must reserve to

themselves the power to deny goods or benefits, to incarcerate, to

seize property, and to otherwise engage in conduct that might be

necessary to an ordered life—or might be a sign of tyranny. More

often than not, it is the processes underlying the course of conduct,

rather than its substance, that determines which side of the liberty

versus tyranny divide is invoked.

From this foundation, the book then marches through some of

the conventional material in a procedure course, perhaps with a bit

more attention to the resolution of disputes than to the familiar

mechanisms of adjud ication. There is an attention to the economics

of litigation and the strategic incentives created by rules that might

be more direct than in the customary presentation of first-year legal

materials. Hopefully, all of these will enrich the understanding of

1

424 U.S. 319 (1976).

2

542 U.S. 507 (2004).