Current impression of the american legal system - Essay Example

Go back to the beginning: Problems arise between people; many of the problems go away by themselves, and others are solved through negotiation, economic pressure, or other informal means. But there remains a residuum of disputes that the parties cannot solve for themselves. The litigation process provides a mechanism for resolving those disputes. Consider what happens in subcultures in which litigation is unavailable. Among drug dealers, for example, disputes and claims of right are likely to be settled with drive-by shootings.

But even aside from the threat of violence, the presence of unresolved grievances corrodes the public's sense of social order and well-being. In a fair, well-ordered, smoothly functioning society, problems get solved and injustices get corrected. We don't need a complex, adversarial legal system to resolve these disputes, however. We could adopt a much cheaper, simpler procedure-a judge could simply flip a coin to decide who wins. Or even simpler--set up computerized kiosks that would randomly generate decisions.

The courts and police would then simply enforce the decisions determined by chance. That system could resolve many more problems at much lower cost. But a judicial system based on chance violates two of our fundamental beliefs about fairness: The courts should render decisions based on rules of substantive law that are fair, and they should do so after observing a fair process. The first task of civil procedure, then, is to implement substantive rules of law and the values and policies on which they are based.

When a legislature or court announces a rule of law, the rule acquires authority simply by virtue of being the law. People respect the law and usually obey it without the threat of sanctions for failing to do so. But litigation provides both a backup mechanism for those cases in which people do not conform their conduct to the requirements of the law, and a forum in which the values and policies underlying the law can be articulated, reinforced, and worked out in new situations. Although no procedural system does this perfectly, a fair system will reduce the possibility of error by removing the barriers to a focused decision-making process.

Civil procedure has a second task, too. We are offended by a dispute resolution system based on chance or corruption because it violates our understanding of fair process, in addition to being unlikely to produce results in accordance with just principles of substantive law. Civil procedure has an independent value in creating a litigation process that conforms to our concepts of fairness. A fair procedural system provides a public affirmation of our belief in justice under law. It also affirms the dignity of the individual litigants and of others like them.

Litigation, like electoral politics, is an arena in which individuals can assert their values and the significance of their own interests. "Having your day in court" is a cherished American tradition. The role of civil procedure is to make sure that the day in court is a meaningful one. Under an adversary system as developed in the United States, fair process has several essential components. Parties to litigation must have an opportunity to adequately develop the facts and law in support of their cases and to present the relevant facts and legal arguments to the decision-maker.

In the typical case, the parties must have a right to have a jury determine the facts of the case. The