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PROCEDURAL LAW

Sociologyindex, Sociology Books 2011

Procedural law is the legal rules governing practice and procedure of the courts, processes of examination, evidence, investigation and conduct of public officials.

Procedural law originates in common law, and court judgments based on equity, natural justice and statute.

Federal law includes a robust body “procedural common law”—common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations.

A Theory of Procedural Common Law
Amy Coney Barrett
Abstract: Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called “procedural common law”—common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized as procedural common law.
This body of law does not fit easily into the traditional account of federal common lawmaking power, because it generally lacks certain features thought characteristic of federal common law: It does not bind state courts, it falls outside of the recognized enclaves of federal common law, and it is not entirely subject to congressional abrogation.
This Article offers a tentative account of the power of the federal courts to make procedural common law. One explanation for this power is a variation on the “enclave” theory advanced in the context of substantive common law: the constitutional structure preempts the state’s ability to regulate federal-court procedure, and, if Congress fails to specify procedural rules, federal courts must. This theory rings partly true insofar as it recognizes that federal-court procedure lies beyond state control. It is unsatisfying, however, insofar as it conceives of the procedural power of the federal courts as entirely derivative of and subservient to that of Congress. The Article thus considers an alternate theory: that procedural common lawmaking authority derives not from congressional default, but from Article III’s grant of judicial power.
This theory has more force insofar as it accounts for the fact that the power of the courts sometimes, even if rarely, exceeds that of Congress in matters of procedure. It depends, however, on the widely assumed but largely untested proposition that federal courts possess inherent procedural authority.

The Article canvasses Founding-era history to determine whether the Constitution can fairly be understood to confer this power, concluding that the historical evidence, while far from overwhelming, supports the claim that federal courts possess inherent procedural authority. Building from this notion of inherent procedural authority, the Article then sketches a theory to explain the power of the federal courts to make procedural common law.
bepress.com/cgi/viewcontent.cgi?article=1000&context=amy_barrett

Procedure in American and European Law: A General Economic Analysis
Jeffrey Parker
law.gmu.edu/assets/files/publications/working_papers/07-40.pdf
Abstract:
This paper seeks to develop a general view on the economic analysis of procedural law (including civil, criminal, administrative, and arbitral procedure, and the law of evidence), with particular emphasis on comparing institutional differences between American and continental European legal systems.
The principal theoretical idea developed is that procedural law can function as either a complement to or a substitute for rules of substantive law, or both simultaneously. Therefore, the economic analysis of procedural law can not be separated entirely from the underlying substantive policy. Further consequences are that procedural rules can not be studied solely in terms of the conventional "expected value" model of litigation, or solely in terms of the conventional legal desiderata of "just, speedy, and inexpensive" adjudication. Litigation can be either too expensive or too inexpensive, in the latter case by inducing inefficient substitution away from optimal ex ante contracts or optimal ex ante substantive rules of law. In the economic analysis, it is the combination of both substantive and procedural rules that determine the ultimate efficiency properties of a legal system. Furthermore, agency cost and public choice problems are important to assessing those properties.
These ideas are applied to describe and critique the existing law-and-economics literature on two major topics: (1) the provision of law enforcement, including private versus public enforcement and civil versus criminal enforcement; and (2) the structure of procedural rules as influencing the costs, expedition, accuracy, and procedural fairness of adjudications. Under both topics, features of European and American procedural systems are compared.
 

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