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Published online by Cambridge University Press: 24 April 2015
When I began telling my colleagues at Notre Dame that I had been invited to prepare a paper on religion and procedure, some of them said “How interesting,” and looked vague. Others, more forthright, came straight out and asked what on earth I was going to say. The reaction is understandable. Since God made everything, there is nothing that cannot be related to religion if you work at it, but procedure seems to be harder going than most things. It is all very well to talk about God ruling the world and the state exercising authority on His behalf. But God does not seem to have any procedure. It is fairly easy, if you go in for analogies of that kind, to think of God as a lawgiver, even as a judge. But to think of Him as a sheriff or a process server stretches most people's imaginations farther than they will comfortably stretch.
1. But see Fortescue, J., in R. v. University of Cambridge (Dr. Bentley's case), 1 Str. 557, 567, 93 Eng. Rep. 698, 704: “I remember to have heard it observed by a very learned man … that even God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God) ‘where art thou? Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat?’ And the same question was put to Eve also.”
2. See Fed. R. Civ. P. 1: “These rules … shall be construed to secure the just, speedy, and inexpensive determination of every action.”: Rule 15(a): “a party may amend his pleading … by leave of court … and leave shall be freely given when justice so requires.” Rule 16(e): “The order following a final pretrial conference shall be modified only to prevent manifest injustice.” Rule 16(f): “If a party or party's attorney fails to obey a scheduling order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge … may make such orders with regard thereto as are just. …” Rule 26(c): “The court … may make any order which justice requires to protect a party or persons from annoyance, embarrassment, oppression, or undue burden or expense. …:” Rule 61: “No error … is ground for … disturbing a judgement or order, unless refusal to take such action appears to the court inconsistent with substantial justice.”
3. The Merchant of Venice, Act IV, scene 1.
4. Letter to Bishop Mandell Creighton, April 5, 1887.
5. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935) (Cardozo, J., concurring).
6. Fed. R. Civ. P. 60(b) reads in part as follows:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
7. The classic case of a judgment set aside after the year envisaged in Rule 60(b) is Klapprott v. United States, 335 U.S. 601 (1949). The government had brought a proceeding to denaturalize Klapprott at the same time as they had jailed him on sedition charges and intercepted his letter to the American Civil Liberties Union asking them to defend him. The default judgment of denaturalization was set aside on a motion brought when he got out of jail, after spending six years incarcerated for crimes of which he was never convicted.
8. I am thinking particularly of Woody Allen's Sleeper, in which the main character is made to confess his sins to a computer as part of a re-education program. See also “Computers” in The Science Fiction Encyclopedia 133–34 (Nicholls, P. ed. 1979)Google Scholar.
9. See Davis, K., Discretionary Justice: A Preliminary Inquiry (1969)Google Scholar.
10. See Fed. R. Crim. P. 43.
11. See Fed. R. Civ. P. 52(a): “… due regard shall be paid to the opportunity of the trial court to judge the credibility of the witness.” See also Chesterton's remark on the jury:
Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is too important to be trusted to trained men. If it wishes for light upon that awful matter, it asks men who know no more law than I do, but who can feel the things I felt in the jury box.
I found this quote as an Epigraph in I The Law in Literature (1960); I have not been able to run down the original source.
12. Note in this connection Professor Lawrence Tribe's distinction between “intrinsic” and “instrumental” conceptions of due process. American Constitutional Law 501–06 (1978)Google Scholar. In the one view, procedural safeguards are required by human dignity; in the other, they make it more likely that an accurate result will be achieved. The two views are, of course, not incompatible.
13. Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting).
14. Cases on Social Welfare and the Individual 382–84 (Levy, , Lewis, , & Martin, eds. 1971)Google Scholar.
15. See, e.g., Fed. R. Evid. 412; Ind. Code 35-37-4-4.
16. See Noonan, J., Bribes 730–31 (1985)Google Scholar.
17. Millar, R., Civil Procedure in the Trial Court in Historical Perspective 21–22 (1952)Google Scholar; Clark, C., Code Pleading 13 (1947)Google Scholar.
18. See Reid, J.P., Chief Justice: The Judicial World of Charles Doe 93–108 (1967)CrossRefGoogle Scholar.
19. Scott v. Shepherd, 2 W. Bl. 892, 897; 96 Eng. Rep. 528 (Blackstone, J.).
20. Pound, R., The Spirit of Common Law 112–38 (1921)Google Scholar.
21. See Bordenkircher v. Hayes, 434 U.S. 357 (1978).
22. See Trevelyan, G.O., England Under the Stuarts 168–69 (1904)Google Scholar. On the High Commission, see my Lay Authority and Reformation in the English Church 158-59, 195, 207–11 (1982)Google Scholar.
23. See Gabel, and Harris, , Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N.Y.U. Rev. of Law and Social Change 369 (1982)Google Scholar.
24. I believe Mr. Lohn is quite mistaken when he says in his thoughtful response to my paper that the real world gives no scope for discretion in answering these questions. I think it would be a rare case in which a conscientious lawyer would be either disciplined or held liable for malpractice for answering any of them one way or the other.