tag:blogger.com,1999:blog-17908317.post1089729856886300468..comments2024-03-28T03:15:14.875-07:00Comments on Unenumerated: The basics: procedural vs. substantive lawNick Szabohttp://www.blogger.com/profile/16820399856274245684noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-17908317.post-33176619499983914862010-04-28T22:49:30.162-07:002010-04-28T22:49:30.162-07:00@Alrenous
I'm not sure there is a distinction...@Alrenous<br /><br />I'm not sure there is a distinction to be made when it comes to Due Process. Procedure is the artifice we've created for the benefit of the suspect and the regular old citizens. The procedural standards for dealing with evidence and litigation exist to protect against the arbitrary treatment of the individual. It's not the evidence that feels violated if it gets illegally seized - it's the person who owns the evidence.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-45894547798022335822010-02-18T13:03:08.050-08:002010-02-18T13:03:08.050-08:00Lawyers love a good oxymoron. :-) "Substanti...Lawyers love a good oxymoron. :-) "Substantive due process" can be taken as referring to substantive areas of law that should be outside of anybody's jurisdiction, i.e. that nobody has jurisdiction over. The issue of determining whether a court has jurisdiction over a certain substantive area of law is called subject matter jurisdiction -- a future "basics" post. It violates a procedural law (subject matter jurisdiction) to enforce the law in certain substantive areas. So the phrase actually makes sense. I recount some of the history <a href="http://unenumerated.blogspot.com/2007/06/very-brief-history-of-due-process.html" rel="nofollow">here</a>.nicknoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-65299291730952750912010-02-18T10:22:09.231-08:002010-02-18T10:22:09.231-08:00Surprised there was no mention of "substantiv...Surprised there was no mention of "substantive due process".TGGPhttps://www.blogger.com/profile/11017651009634767649noreply@blogger.comtag:blogger.com,1999:blog-17908317.post-80474038661126106382010-02-15T19:22:02.509-08:002010-02-15T19:22:02.509-08:00If there isn't a word, I get to make one up. N...If there isn't a word, I get to make one up. Nifty.Alrenoushttps://www.blogger.com/profile/11119846531341190283noreply@blogger.comtag:blogger.com,1999:blog-17908317.post-41956269057261600362010-02-13T15:35:35.846-08:002010-02-13T15:35:35.846-08:00Alrenous, I agree that's a good distinction. ...Alrenous, I agree that's a good distinction. I don't know of a single word or official phrase for it. Note that both can involve coercion (e.g. subpoena of witnesses). Although coercion of third parties, unlike coercion of suspects, leaves a bad taste in my mouth, it's a normal and necessary part of the system. <br /><br />On your second question, by who and whom do you just mean plaintiff and defendant? The area called "personal jurisdiction" is about who and whom can be plaintiff or defendant in what court(s), although it's usually based on where the plaintiff and defendant were or are and where the court(s) are. In the Middle Ages it was more common to base it on status, e.g. merchant fair courts had personal jurisdiction over people who had the status of "merchants" and attended the fair, even if the act in dispute occurred outside the fair. Status can still sometimes be a distinction e.g. with military court jurisdiction over members of the military. But it's mostly based on whose territory the act occurred in or that you are in when the suit is brought. Personal jurisdiction is a big topic in the Civil Procedure course. I discuss it <a href="http://unenumerated.blogspot.com/2006/10/three-kinds-of-jurisdiction.html" rel="nofollow">here</a> and <a href="http://unenumerated.blogspot.com/2007/08/personal-jurisdiction-before.html" rel="nofollow">here</a>.nicknoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-17468784165089933042010-02-12T09:03:50.622-08:002010-02-12T09:03:50.622-08:00When I look, I naturally want to make a distinctio...When I look, I naturally want to make a distinction between procedures dealing directly with the suspect - Miranda rights, detainment and so on - and procedures for dealing with evidence gathering and argumentation. <br /><br />Is there a word for this further distinction? <br /><br />Why isn't the who and whom of civil suits defined substantively? (I think I get the 'where' bit.)Alrenoushttps://www.blogger.com/profile/11119846531341190283noreply@blogger.comtag:blogger.com,1999:blog-17908317.post-61393905409608254442010-02-10T02:20:12.521-08:002010-02-10T02:20:12.521-08:00Thanks. I'll be doing some Roman stuff as wel...Thanks. I'll be doing some Roman stuff as well.nicknoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-27719126645876388402010-02-02T18:23:26.795-08:002010-02-02T18:23:26.795-08:00Great to see you blogging again. I will follow th...Great to see you blogging again. I will follow this series with great interest. Will you also continue your history of Rome?Ivan Nilin Navihttps://www.blogger.com/profile/05405410095938771757noreply@blogger.com