Tiers

Abstract

Procedure is a mechanism for expressing political and social relationships and is a device for producing outcomes. The purpose of this article is to clarify the value-laden aspects of courts' procedures, to survey interrelated changes in civil and criminal procedure over the past twenty years, and to analyze how the evolving procedural doctrines are linked to value choices. I use the term procedure to include both the formulation of rules that govern litigants and the decisions to provide single or multiple opportunities to litigate. That procedures are used to obtain outcomes (in a narrow sense) in specific disputes is uncontroversial. But procedure also embodies deeply held, albeit often unarticulated, views of human relationships, of the importance and difficulty of passing judgments on individuals' conduct, and of the place of government in citizens' lives. One example illustrates this point. Two years ago, when having to decide whether to incarcerate a convicted defendant for twenty or for thirty days, a trial judge flipped a coin. His audience was incensed, and the judge was subsequently censured.