Vanderbilt Law Review

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The Federal District Court for the Northern District of Illinois recently adopted a rule providing for submission of the issues of negligence to a jury before evidence on the issue of damages is introduced (hereinafter sometimes referred to as the bifurcation rule or split trial rule). While reflecting a commendable spirit of judicial responsibility for reducing court congestion, the issue of its propriety raises some of the most subtle and difficult problems of the proper relation of courts to legislature in our system of independent branches of government; of the characterization of matters as substantive and procedural for various purposes; of the common law system of case by case development as opposed to legislation by act or rule; and of the effect of constitutional limitations in inhibiting proposed solutions to pressing problems.

Our procedural principles are sufficiently broad, and we have sufficient analogous devices so that precedent can be found to embellish an opinion finding the requisite power in our courts to uphold the bifurcation rule. But the rule must be considered in the context of the structure of our tort law as it in fact has developed into a working institution for compensating the injured. The effective legal rights of injured persons are based upon substantive rights--the law of negligence, contributory negligence and allowable damages--as attenuated, warped and reinforced by the hazards, the costs and the ameliorating influences of our procedures for obtaining remedies. Any change of procedure which makes it more or less difficult to obtain a remedy will have an impact on a party's effective legal rights, will shift the balance somewhat between plaintiffs and defendants. Where the effective legal rights are only minutely affected, this result of a proposed change in procedure can be ignored. The bifurcation rule, however, has within it potentialities for a major change in the relative position of plaintiffs and defendants in negligence cases and the rule cannot be appraised merely by procedural efficiency tests which might be appropriate for other proposed procedures.

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