This book will analyze legal procedure as part of a complicated interaction between private ordering and public intervention. Modern society brings people together in a variety of settings and injects an active state presence into all manner of every day activities. Inevitably there are disputes. Yet, these disputes settle all around us, based on social norms or simply an understanding of what is right and what is wrong; what is contestable and what is not. This private ordering of responsibility occurs against a backdrop, sometimes but certainly not always invoked, of what might occur were the matter to be taken to the more costly system of public dispute resolution. In this sense, disputants outside the legal system are said to be bargaining in the shadow of the law. For those who cannot privately order their disputes, there are two public interests. The first is to provide a public resolution such that future similarly situated disputants may be better able to anticipate what are the likely outcomes should they proceed to litigation. The second is to provide finality so that the disputants may get on with their affairs. The central thrust of this book will be to examine the overall structure of public dispute resolution through six basic concepts: 1)rudimentary fairness and the trade off between equity and efficiency; 2)defining the parameters of a dispute in terms of the presentation of issues and the obtaining of information; 3)defining the scope of the dispute in terms of parties, particularly as the judicial system confronts increasingly complex litigation; 4) defining the power of the courts; 5) securing finality; and 6) the costs of procedure.
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adjudication allow amendments American application Asahi burden of production California Celotex citizens civil procedure class action common law complaint concept constitutional costs court system created decision defendant demurrer determination discovery dispute resolution diversity diversity jurisdiction doctrine due process effect efficiency Erie evidence example expansive facts factual federal courts federal law federal question federal question jurisdiction Federal Rules filed formal Hansberry initial interest International Shoe interpleader issue preclusion joinder judges judicial jury Justice L.Ed law and economics lawsuit lawyers legal system liability limited litigation litigation process ment merits minimum contacts modern motion to dismiss Mottley Neff outcome parties Pennoyer personal jurisdiction plaintiff pleading potential presented pretrial prior problem res judicata resolve result role Rule 11 S.Ct seeking settle settlement sovereign statute subject matter jurisdiction substantive suit summary judgment supra note Supreme Court tion tort transaction trial ultimate