Josh Kaplan Civil Procedure Fall 2004 Pro. Eskridge Contents

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Josh Kaplan Civil Procedure

Fall 2004 Pro. Eskridge


Part I. Values of Procedure 1
Goldberg Cases 1

Ideology of Advocacy 5

Part II. Initiating Process and Politics of Participation 10
Pleadings/Subject Matter Jurisdiction 10
Choice of Law (Erie) 13
Summons and Complaint (Rule 4) 20
Who can Bring a lawsuit? 21
Financing Litigation (Alyeska/Galanter Thesis) 23

Part III. Strategic Interactions 25
Preliminary Actions (Rules 64-65) 25
Personal Jurisdiction 31
Defendant’s Response (Rule 12) 39
Discovery 42

Part IV. Allocating Decision-making Power 50
The Jury Trial Right 50
Burden of Proof 53

Part V. Complex Litigation 56

Growth of a Lawsuit 56

Class Actions 58

Part VI. Meta-Procedure 63
Arkansas Prison Litigation 63

Modles of Adjudication 64

Introduction: The Values of Process
Goldberg v. Kelly

FACTS: Plaintiff (Kelly) sued the state of NY for terminating welfare benefits without prior hearing. NY state process for terminating benefits happened after approval from superiors and before an in-person evidentiary hearing.
ISSUE: Whether a state that terminates public assistance payments without an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the 14th Amendment.
HOLDING: (Brennan) Yes it is a denial of due process.
The state must provide an evidentiary hearing before termination of benefits.

Recipients a must be able to consult with counsel, present evidence orally, and confront and cross-examine adverse witnesses.

Counsel need not be provided at pre-termination hearing

Decision-maker's conclusion as to a recipient's eligibility must rest solely on the legal rules and evidence adduced at the hearing and must be impartial.

SIGNIFICANCE: Due Process Clause protects right to hearing before deprivation of welfare benefits.

Was Mr. Kelly deprived of life, liberty or property? (from Eskridge hand-out):

Both the Court and the Litigants focused ONLY on Kelly’s right to property (welfare) and not the right to a minimal condition of life.

Defendant, Goldberg, did not question that it was a property interest because Goldberg was interested in the system being reformed. Black’s dissent in Goldberg questions welfare benefits being considered property.

The Bitter with the Sweet argument: If the State creates the entitlement why can the legislature not also condition it on procedures short of due process?

This wouldn’t be an issue if the court had decided this was a liberty issue.

The Court, by defining welfare as property, could rule that welfare is not a right because it is a political obligation so it can be taken away as long as the correct process is used. Due process is a pre-political right.

Political obligation: something the political process can decide to give you.

Pre-political obligation/right: something the political process cannot tamper with- ex. free speech

Dissent (Black):

Government aid is a privilege, not a right.

Separation of powers – this is too close to legislative policy-making

Anti-domocratic. The judges do not have enough democratic accountability.

Judges are not well trained to make policy like this.

Values of extra procedure in Goldberg

Utilitarian - Posner Approach (centers on economic) has been applied in Eldridge and become part of con law.

O’Connor applies this approach to terrorism

Goldberg – Once you hold that gov’t entitlement is property interest, you can throw in utilitarian approach.
Libertarian approach [ala Mill] that individual will be protected.

Brennan is doing utilitarian balancing act, with thumb on the scale in favor of the individual

Dignitary analysis.

Note: Mrs. G. Article (Lucy White) – can’t assume that an in-person hearing will ensure that individual rights are actually protected – phenomenology of the hearing is not one in which dignity of individual will be protected.

Participatory values

Link to dignitary values

(Michaelmen) idea that losing is more legitimate if you can participate.

Truth – truth is a result of procedural process (think about Olympic medal addition mistake). Constructed truth from procedure is the real truth. (Ani’s)
Rule of Law

(Fuller) Transparency of legal results

we can rely on them (reasonably predictably applied)

objective (applied across the board)

Mathews v. Eldridge


Eldridge is receiving payments for diabetes, back pain and anxiety.

Receipt is a dynamic process under re-examination – he must continually redemonstrate need

Eldridge must appeal to mixture of state and federal agents.

Eldridge is asking for a matter of Const. requirement that HEW people owe a process that doesn’t terminate benefits until ALJ hearing
Holding (Powell): The procedure outlined does not violate due process clause.
Goldberg v. Kelly as precedent – reasoning is central, even though on the surface it seems to be an opposite holding.

Powell takes Goldberg as standard, and says that inquiry in case will give us a different result in Mathews.

Three factor test (mechanistic method):

Private interest affected

Risk of erroneous deprivation/value of additional procedure for prevention (*** New Factor***)

Government’s interest in keeping costs down

Differentiates situation from Godlberg:

Difference between disability and welfare

people have some liquid assets and income welfare people don’t have.

People can always go onto welfare.

Difference in process

Determination of disability is based on medical evidence (doctors reports, etc.)

Defendant has opportunity to supplement his own file.

Criticism of Matthews

Slights other values of process

dignitary – can dignity be balanced?

participatory – value might not be achieved via judicial review

rule of law – tradition of prior hearings may be ignored?

cost benefit analysis deeply indeterminate

Quanitites are immeasurable

factual questions are key but unanswered

key inquiry is not date but presumption and burden of proof

Utilitarian Balancing

Justice Black again – this is policy, not law.

Comparing Goldberg and Matthews



View of benefits

Benefits are tangible property

“back door” Revival of right/privilege distinction

deference to administrative apparatus


Implicitly utilitarian w/ presumption of importance of hearing (may be dignitary, participatory, libertarian values present

More explicitly utilitarian

Burden of proving necessity is now on recipient


State interest in welfare (avoid Malaise)

Importance of personal hearing

Willingness to rock the boat (just a bit)

State interest in scarcity (more reflective of 70’s econ. Conditions)

Importance of records and expertise (technocratic)

Defference to status quo (empowering administrators)

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