44 Pages Posted: 25 Oct 2006
This essay confronts claims that the American trial court poses a threat to the rule of law. I argue that the American trial court is a forum within which a rule of law distinctively appropriate to our society may be realized. The narrative and critical devices of the trial court embody norms that are intrinsic to law as we practice it in a manner analogous to Dworkin's claim that "principles" are intrinsic to law. There is no reason to identify law with bureaucratic-formalist modes of adjudication, which, I argue, have a higher level of arbitrariness than do the methods employed at trial. I then provide a short summary of those methods and their import. Finally, I address the work of two authors who argue that the integrity of the American trial is threatened by its too frequent failures to achieve factual accuracy. Though disputing some of their prescriptions, I agree that the rule of law, under either understanding, cannot be realized without a serious attention to issues of factual accuracy and I argue that our most serious weaknesses here stem from different sorts of failures at the pretrial stage.
Keywords: Jurisprudence, Legal Philosophy, Litigation, Procedure
Suggested Citation: Suggested Citation
Burns, Robert P., The Rule of Law in the Trial Court. DePaul Law Review, Forthcoming; Northwestern Public Law Research Paper No. 06-24. Available at SSRN: https://ssrn.com/abstract=939832