Procedural law is the oil that greases the legal machine. No area of law has more theoretical or practical importance. From a theoretical perspective, procedural law informs us about the basic premises of the legal system itself. The adversarial premise of the American legal system maintains that our system is based on competition and that individuals act in their own self-interest and cannot be trusted unless their power positions are equalized by a disinterested and perhaps indifferent tribunal. The fact that we preserve the jury system suggests that we do not even trust the impartiality of our judges. The rules that exclude evidence suggest that we do not trust the capacity of juries to sift good evidence from bad.
The theoretical premise at the heart of our procedure is thus: if the means by which conflict in society is resolved are fair and equal, justice will, on the whole, be achieved. Acceptance of this premise is a virtual catechism of lawyers. When criminal defense attorneys are asked, “Would you defend a guilty person? Would you help a guilty person be acquitted and go free?,” the answer is usually the same: “Every person is entitled to competent legal representation; it is not for the attorney to judge; it is the job of the prosecution to prove guilt beyond a reasonable doubt.” This response can be understood only in the context of a system that places procedure on a pedestal.
The following topics are covered in this session: