Imran's personal blog

August 22, 2012

Civil Procedure notes ( Coleman E section) 8/21

Filed under: Uncategorized — ipeerbhai @ 3:11 am

We started with the Hamdi case.



  • Hamdi was captured in Afghanistan by the northern alliance, armed with a Kalashnikov rifle after 9/11.
  • Northern alliance hands him over to US military
  • Sent to Guantanamo
  • US Citizenship discovered ( born in US ), moved to Navy brig.
  • His dad filed a writ of hideous corpus in the Eastern district of Virginia.
    • Virginia has 2 districts – East/West.  Federal jurisdiction.
    • Next friend briefing.  Brig is likely located here, so that’s why here.
    • Aside notes
      • Recall District court à Circuit court à Supreme court.
      • This is a civil case, but is not a private case.  A civil remedy originating in common law.  Habeas corpus was used mostly to help political prisoners who disagreed with state back during its origin times.
      • We won’t touch Habeas again until Federal court( Some other L level ).
      • District Court decides to do an in camera review.  ( Secure review – a single judge reads a redacted brief ).  Evidentiary hearing.
      • Government appeals District Court review request to 4th circuit.
      • 4th circuit says no evidentiary hearing required.  Hamdi appeals to Supreme court.
      • Aside:
        • This is called procedural posture.
        • This class is about federal civil procedure.
        • She has a different briefing format.
          • Parties
          • Procedural posture: ( First instance  à )
          • Facts
          • Issue
          • Rule
          • Reasoning
          • Holding
          • Dissent
          • How did government decide he was an enemy combatant?
            • Interrogated by military team.  Perhaps even the people who detained him.
            • Notes from northern alliance.
            • It may have been a bit of a kangaroo court( Hamdi )
            • On what grounds does he apply for this?
            • Due process of law.  5th and 14th amendments.
            • Remember constitutional rights require a state actor.  Can’t use them against Circle K for a big gulp…
            • Government is arguing for some evidence standard – they made this up – a presumption saying that, “We think this, thus it’s true.”
            • Does the authorization for use of force allow for detention of citizens?
              • O’Conner says Yes.
              • Once detained, what process? ( This is the issue )
                • Applies Matthews test – ( RULE ) – is Hamdi’s personal interest greater than government interest and the risk of error?
                • Procedural safeguards?  It’s a strange 3-part balance.
                • Private interests?
                  • Liberty.  Foundational.
                  • Aside:
                    • What would the founders think?
                    • Unchecked interest can be used wrongly.
                    • Government interest?
                      • National security, government resources, military resources.
                      • Military needs to function efficiently.
                      • Makes balancing.
                      • Risk of Error?
                        • Unacceptably high.
                        • Court’s holding:
                          • Rejected interrogation as the basis of facts.  Gov’t has to demonstrate facts at trial.
                          • Meaningful opportunity to be heard.
                          • Neutral decision maker( not the interrogator )
                          • Counsel must be assigned.
                            • This is under review now.  Civil doesn’t require council.
  • Notice of factual basis.
  • Aside:
    • Even if Hamdi is known to be guilty( even by Hamdi ), why do we care to provide due process?
      • So we all have the rights.
      • Human dignity.
      • Honesty in the system itself.
      • Dissent:
        • Plurality decision ( 6 agree with outcome, 4 with reasoning, 2 with different reasoning. Another 2 dissenting.  This is “weaker” reasoning… )
        • 2 dissents – Justice Scalia saying Government is wrong entirely.  Must be a full, normal treason trial when a citizen ( What would the founders do ), or the government can suspend habeas corpus.
        • Justice Thomas says national security is too important, and a citizen captured overseas can be held indefinitely.  The court shouldn’t get involved in the use of military force.
        • Take-Away:
          • Application of the Matthew’s test.
          • A lot of civil procedure – what role does the court occupy?
          • Aside:
            • Why do we start with this case?
              • Someday, someone will give you a sob story and you need to know what to do.
              • It gives us a basic overview and skillset for the course.
                • Reading a case.
                • For the professors.  Very different people…
                • Remember the framework!
                • What is the court worried about?
                • What law to resolve the issue?
                • What is the ultimate resolution and how can we use it going forward?
                • Look at the procedure!  Not the substance of claim, but the procedure.  The procedure has rules.  There is no substance without procedure!  You can’t do anything without procedure ( hygene factor? )
                • Fairness Vs. Efficiency.  It’s the theme of the class!
                  • A system that works fairly and cheaply.  The innate tension between the two…
                  • Rule of law.
                    • Procedure gets used in non-benign ways.  The approach can affect the outcome.
                    • Many cases never reach the merits because of procedure…
                    • Why due process?
                      • For a while we’ll be in the constitution.
                      • Then cases
                      • Then the procedures themselves.
                      • Due Process is about fundamental fairness.  Undergirds entire system.
                      • Look at every rule/doctrine – is this fair?
                      • David’s “expulsion” ( we live-acted the example from the book with a student ) due to honor code violation.
                        • What’s lost?
                          • Time
                          • Money
                          • Reputation
                          • Opportunity
                            • Leisure
                            • Family
                            • Work
                            • Business school instead.
        • Battery ( from the example… )
        • Emotional distress.
  • What’s he missing?
    • Notice of factual basis
    • Opportunity to be heard
    • No counsel
    • No ability to confront witnesses
      • What if they lied?
      • No neutral decision maker
  • What if he really had done it?
    • Integrity of system.
    • Equal protection – guilty must be protected the same as innocent.  The rules must not be based on end result.
    • We all agree the system was fair.
  • So what do we do?
    • Ex Ante confidential notice.
    • Notice should explain the charge ( who/what/when/where/why )
    • Keep our student status until resolved.
    • What’s next? ( Where do I go and talk to who? )
    • Who can help us?  Counsel?
    • Public hearing?  Confidential?
    • Public is transparent, and we can keep precedent.
    • Neutral arbiter.
    • Opportunity to appeal to someone higher.
    • Present evidence.
    • Access to records, witnesses, etc…
    • Time to prepare.
    • Know the consequences?
    • Will my peers be there to help us?
    • Trial in a good place/time ( not at Gonzaga! )
    • Enforceable judgment/remedy.
    • Who is paying for this?
      • Tuition!
  • What could we do before a “trial”/lawsuit?
    • Settle.
    • Walk away.  It’s not worth it.
  • Now we file…
    • Prepare a complaint.
    • Who is the dean?
      • Give notice
      • Logistics
        • What jurisdiction?
        • In WA State, or Western District if federal.
        • Personal jurisdiction ( to compel them to court ).
        • Venue ( State court?  Federal Court?  Arbitration?  Tribunal? )  aka subject matter jurisdiction.
        • Content of claim.
          • Called the complaint.
          • Facts/allegations.
        • Defendant can respond
          • Called the answer.
          • Deny/Admit/Don’t know.
        • Evidence?
          • Discovery!
        • What if he discovers more people to sue, or more problems?
          • Amend the complaint.
        • What if the yahoo on the other side is an idiot?
          • Bad behavior.  Rule 11 sanctions.
        • Adjudication/disposition
          • The trial itself…
        • What if this entire thing is a waste of time?
          • Summary judgment/motion to dismiss.
          • That’s pre-trial.
        • That’s the syllabus…  Notice the connections to our intuition if we were accused of honor code violations…
        • Assignments weeks at a time, on Thursdays.

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