Main Content

Civil Procedure 2022

Preliminaries 1: Constitutional Foundations of Adjudication, Notice and Opportunity to be Heard

This unit is focused on two constitutional foundations for a just adjudication system: notice and an opportunity to be heard. It introduces you to the Supreme Court’s cases on each requirement and provides you with more legal theories of what judges are ‘supposed to’ do and what they are ‘actually’ doing in adjudication.


3.1 More Legal Theory on the Role of Adjudication extends your learning of different perspectives on adjudication. The first video discusses what is sometimes called “legal constructivism,” a theory of adjudication associated with the late legal philosopher Ronald Dworkin. We then have a video covering Critical Race Theory, an important (but often misunderstood) theory about how the law intersects with race. Finally, a set of article excerpts on Civil Dispute Resolution in the Navajo Nation introduces you to a U.S. system of civil procedure with a very different philosophy regarding what adjudication is for and introduces you to tribal law.


3.2 Notice discusses the first of two foundational constitutional idea in the U.S. law of adjudication: that individuals must receive notice of a legal action against them. As we will see, the requirement (like that for the Opportunity to Be Heard) emanates from the Due Process Clause of the 14th Amendment of the U.S. Constitution, which reads in relevant part “No State shall deprive any person of life, liberty, or property, without due process of law…” Our focus will be on getting from these few words representing an abstract proposition to tangible guidance in specific cases involving things like mail (certified versus regular), newspaper advertisements, posting on doors, etc. We will start with Mullane, the Supreme Court’s most important early foray into these waters, and then consider a smattering of more recent cases.

While the doctrinal content of these cases will be good to know, two more thematic takeaways will continue into Unit 3.3: (1) To examine the way various legal theories of adjudication are on display in these cases, as well as the roads not taken. What does it mean to do Constitutional interpretation? This is an appetizer to the more fulsome discussions you will have about theories like Originalism in your Constitutional Law courses. (2) The choices between Rules versus Standards.


3.3 Opportunity to Be Heard introduces you to the second foundational constitutional idea in the U.S. law of adjudication, that individuals must have an opportunity to be heard at a meaningful time in a meaningful manner. This too emanates from the Due Process Clause. We will start with the two foundational cases, Goldberg v. Kelly and Mathews v. Eldridge, and discuss what changed between the two cases. Both of these cases involve deprivations by the state, and in them the court asks whether someone is entitled to a pre-deprivation hearing and, if so, what form that hearing must take.

We will then discuss deprivations by private individuals in what are sometimes called “provisional remedies”—like putting a lien on a piece of property at the start of litigation.

Finally, we will look at two contemporary applications. First, the Supreme Court’s decision in Hamdi v. Rumsfeld involving the detention of an alleged battlefield combatant as part of the war in Afghanistan. Second, we will use a problem related to contesting one’s inclusion on the TSA no-fly list to consolidate what we have learned through an experiential exercise.


3.4 Introduction to Remedies Preliminary Injunctions and TROs introduces you to one particular form of provisional relief frequently at the heart of civil liberties and civil rights litigation —the preliminary injunction. We will use the Chaplaincy of Full Gospel Churches v. England to learn the basic standard for granting a preliminary injunction and introduce you to the law of remedies.