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Hastings Constitutional Law Quarterly

Abstract

The law proceduralists write about and teach is nothing like what most ordinary Americans experience when they step into court. Indeed, the evidence shows that most Americans who have legal problems do not ever get to court, nor do they receive a meaningful alternative hearing. In this way both judicial and academic discourse on procedure, even among those who see glaring problems of access to justice, is idealized, abstract, and ossified—unconnected to the actual. This Essay describes the ideal/actual divide in procedure—the cognitive, doctrinal and ideological effects of lingering on the ideal side of it, and the forms of subordination perpetuated on the actual side. The Essay begins by turning away from the federal courts, which decide less than two percent of all cases in the United States, in order to examine a series of recent cases and reports on the actual administration of justice in state courts, in state and federal administrative agencies, and in private arbitration. These, after all, are the forums in which ordinary people experience the administration of justice. The examples to which the Essay points draw into relief the extent of the ideal/actual divide, the scope of procedural failure in these settings, and the profound consequences for vulnerable and marginal populations. The Essay closes by calling for a reconceptualization of both pedagogy and procedural doctrine from the perspective of the actual. First and foremost, the reality of how procedure works for ordinary people, including how it fails them, must be studied more closely, taught more frequently, and incorporated into debates about procedural reform.

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