Procedure

For Michael Tigar, “law is not a thing; it’s a process.” Throughout his litigation career, Tigar has obtained a wealth of knowledge about rules of legal procedure, and has learned to wield them adeptly. He has advised criminal defense lawyers, for example, to learn discovery rules “and be willing to use them in a very aggressive way” to hold government accountable.

At the same time, Tigar has challenged procedural rules and sought to affect their development and interpretation. The impetus for such challenges can be seen in his review of the 1969 Supreme Court term in the Harvard Law Review, where he wrote that, in a “judicial system in the hands of a hostile government,” procedural formalisms “mask injustice and make it easier to inflict.” Thus, he suggested, “fairness and respect for personal rights” ought to take primacy over the desire to “preserve and protect [courts] in their present condition.”

This section includes scholarly discussions of the uses of and challenges to various procedural aspects of criminal trials, from the role of the grand jury to the use of expert testimony. Tigar is clear about the substantive commitments that guide his approach. In 1971, for instance, he criticized the grand jury for its clandestine nature, use of McCarthy-era style tactics, and chilling effect on social reform movements and civil liberties.

Also included in this section are a number of items on civil procedure, including the examination of changes in rules, with an eye toward their potential to affect both the substantive outcome of the case and the exercise of rights in daily life. Such discussions can be found, for example, in relationship to the irreparable injury rule and rules about pretrial case management.

Procedure is an area that Tigar has found ripe for satire. Some of the essays included here take the form of short stories, and are authored under a pseudonym. These include “The Expert Who Walked Off Angry” and “The Prosecutor Whose Sword was Taken Away.”

The section also includes materials from several of Tigar’s cases that turn on procedural points, including his defenses of John Demjanjuk, David Gelbard, Louis Lefkowitz, and Anthony Salerno.

27 archive items found.

Preview Type Title Year
Cases Brief for Appellee Cunningham

1977
Oral History Importance of Disclosure & “The Jencks Hunt”

2016
Correspondence Letter From Judge Bill Wilson About ADR and Voir Dire

2010
Audio Demanjuk v. Petrovsky, Arguments

1993
Cases Demjanjuk v. Petrovsky, Motion for Interim Relief

1993
Note from Charles Alan Wright

1993
Audio Five Minutes of Oral Argument for Lawyer Nancy Hollander in a “National Security” Case

2006
Cases United States v. Salerno

1992
Audio Lefkowitz v. Cunningham

1977
Audio Recording of Gelbard v. United States Oral Arguments

1972
Lectures What Are We Doing to the Children? An Essay on Juvenile (In)justice

2010
Clinton Jencks In Memoriam

2005
Essays Book Review of Appellate Courts Structures, Functions, Processes, and Personnel

2007
Essays Rationing Justice — What Thomas More Would Say

1999
Essays The Prosecutor Whose Sword Was Taken Away

1991
Journal Articles Pretrial Case Management Under the Amended Rules: Too Many Words for a Good Idea

1994
Speeches Moderator, The Use and Misuse of Expert Evidence in the Courts

1993
Essays The Expert Who Walked Off Angry

1991
Book Review Laycock, The Death of the Irreparable Injury Rule

1991
Journal Articles Mail Fraud, Morals, and U.S. Attorneys

1984
Journal Articles Intending, Knowing and Desiring: The Mental Element in Federal Criminal Law

1988
Journal Articles Constitutional Rights of Criminal Tax Defendants: A Bicentennial Survey and Modest Proposal

1987
Journal Articles Crime-Talk, Rights-Talk, and Double-Talk: Thoughts on Reading Encyclopedia on Crime and Justice

1986
Journal Articles International Exchange of Information In Criminal Cases

1983
Journal Articles Waiver Of Constitutional Rights: Disquiet in the Citadel

1970
Journal Articles Tigar & Levy, The Grand Jury as the New Inquisition

1971
Book Review Psychoanalytic Jurisprudence

1973