A Civil Procedure Curriculum Challenge
posted by Spencer Waller
I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.
I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.
I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.
I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.
All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works.
I view this as an exercise in at least mid-level theory, rather than specifically teaching litigation skills. The only drafting I have my students do is an affidavit where the “in state” students draft an affidavit as the domicile of the “out of state” students. I don’t have or assign mock case files or share complaints, pleadings, motions, deposition transcripts, discovery requests, responses, etc., except when they happen to appear in the book I use (at the moment the Yeazell casebook). However I do recommend Joseph Glannon’s fine book if the students want to see examples of those sort of documents.
If Loyola ever goes back to a two semester format I will increase my coverage of personal jurisdiction and Erie. I certainly see the value in watching a line of cases unfold over time and training students in the close reading of cases from day one. But this is probably the one skill that is well covered in the first year curriculum.
I have several reasons for starting with the litigation process and making it the focus. First, I think it’s just cruel to make a 1L read Pennoyer v. Neff in their first week of law school. Second, if the Supreme Court can’t figure out anything but platitudes and results in the personal jurisdiction field, why should I expect any more from my students? Third, jurisdiction to do what to whom? Starting with the litigation process at least gives the students the chance to understand how a case unfolds before they have to tackle the more abstract questions about what court it is supposed to take place in and why. Fourth, there are plenty of opportunities to pursue personal jurisdiction, subject matter jurisdiction, and Erie in Federal Courts and other litigation courses, including one I teach.
Finally, maybe I am fooling myself, but I also think that I am giving my students a leg up in their other classes. Every case in every course (other than criminal law) is a civil procedure case that just happens to be about a particular area of the law like torts or contracts. If the students can better understand the litigation process early and deeply, I think they will be better equipped for the rest of their first year experience.
But hey, I am a reasonable kind of guy and realize that law professors approach their courses with all kinds of different objectives. Any well thought out plan probably provides the students with a worth while experience. I am sure most would also agree that emphasizing one aspect of the course because its more fun or interesting or easier for the professor probably isn’t the way to go.
By way of conclusion, let me throw out the following challenge. I am happy (or at least willing) to switch approaches, if at least one of the other professors out there reading this is. Next fall I will teach the course 60/40 personal jurisdiction, subject matter jurisdiction, and Erie if you do the reverse. Then we can meet in the following January in cyberland on Concurring Opinions or elsewhere to compare experiences.
October 12, 2009 at 9:56 am
Tags: ADR, Civil Procedure, discovery, Erie, federal rules of civil procedure, litigation process, personal jurisdiction, pleadings, subject matte jurisdiction, summary judgment, Twombley
Posted in: Civil Procedure, Education, Law Practice, Law School (Teaching), Legal Theory, Teaching
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Responses (6)
Steve Lubet - October 12, 2009 at 10:40 am
This is an outstanding post. We Trial Advocacy teachers have always taught that “law is easy but facts are hard,” and it is great to see someone make the point in the context of a first year Civil Procedure course.
Bruce Boyden - October 12, 2009 at 1:51 pm
I agree with a lot in this post, and am also unhappy with the way the personal jurisdiction cases play out in the readings. So I’m curious what your syllabus looks like. What personal jurisdiction cases do you teach? How do you teach discovery — straight from the book, or do you supplement with your own cases? I’ve generally not been happy with most of the discovery cases I see in textbooks, because they’re (again) Supreme Court cases that don’t really illustrate that well what the issues are now. (E.g., Hickman is an interesting case and all, but work product just isn’t subject to any debate any more.)
Howard Wasserman - October 12, 2009 at 4:58 pm
I join in some of the questions that Bruce asks, especially as to how you cut down the personal jurisdiction portion. I would guess that I divide my class about how Spencer does and I probably still give too-short shrift to discovery.
Spencer Weber Waller - October 13, 2009 at 7:42 am
Other than deciding for the first time to skip Pennoyer itself, I pretty much plough through the usual suspects. I focus on International Shoe, Shaffer, World-Wide Volkswagen, Asahi, and Burnham. Don’t spend too much time on Burger King, Carnival Cruise and Mullane. I do spend some time on the concept of internet jurisdiction as the most important modern application of the concepts suggested by the cases.
Howard Wasserman - October 13, 2009 at 11:34 am
How do you cover Burnham without having taught Pennoyer?
Geoff Garver - March 20, 2010 at 7:27 am
I teach common law civil procedure at University of Montreal – a 3 credit course that is supposed to cover both the US and Ontario, with both litigation rules/procedure and jurisdiction. I even tackle the Erie doctrine. I use the Subrin casebook (which places jurisdiction later in the term, as you prefer). Does this seem feasible in a 3-credit course? If you were in this situation, what would you emphasize and what would you cut out?
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