An Argument Against the Traditional Structure of the Civil Procedure Course
posted by Dave Hoffman
(Data Source: Examining the Work of State Courts: An Analysis of 2009 State Court Caseloads; Federal Court Management Statistics: 2009)
(Update: Fixed a typo in the figure. See the comment thread.)
February 16, 2012 at 2:47 pm
Posted in: Civil Procedure
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Responses (11)
Tom J - February 16, 2012 at 2:55 pm
Let me offer this counterpoint: But federal court is sooooo much cooler.
anon - February 16, 2012 at 3:10 pm
Strictly speaking, if you weighed just civil filings instead of all filings, it’s more like 276,000 to 20 million. The 50 million traffic filings in state court seem hardly fair to consider for a civil procedure course.
Joe Miller - February 16, 2012 at 3:24 pm
Might help if the state court actions were commenCed, rather than being merely commenTed (as the figure reports).
Dave Hoffman - February 16, 2012 at 3:26 pm
Anon – a totally fair point. It’s still a 1:100 ratio (instead of 1:300). I don’t think the pie chart would look different, though.
Tom J – yes, and it has PACER!
Dave Hoffman - February 16, 2012 at 3:27 pm
Joe: That’s just mean.
I’ll fix it, but I’ll leave up your comment as a warning for people who try to make fun figures.
Danielle Citron - February 16, 2012 at 4:42 pm
But so many states follow FRCP and so it does make sense to teach it rather than any given state’s procedure (unless most students are likely to practice in a certain state). Interesting fact to know, of course.
Scott Dodson - February 16, 2012 at 4:42 pm
Interesting stat, Dave. I guess one might also want to know how many suits commenced in state court were removed to (and primarily litigated in) federal court.
Dave Hoffman - February 16, 2012 at 5:18 pm
Scott, as I understand the chart I linked to, it includes removed cases. So the # will be small. This chart suggests that the total is about 30,000 yearly. (http://www.uscourts.gov/Statistics/JudicialBusiness/JudicialBusiness.aspx?doc=/uscourts/Statistics/JudicialBusiness/2009/tables/S07Sep09.pdf)
Danielle: Sure, although the fact that state codes are written like the federal rules doesn’t mean that the state courts interpret them in the same way (i.e., Twombly, Celotex, discovery, etc.) And a some of what most of us teach in the civil procedure (basic) course is federal-court specific, like Federal SMJ, or Federal Claim/Issue Preclusion, or Class Action Practice.
Anon, good nurse! - February 17, 2012 at 1:57 pm
“Sure, although the fact that state codes are written like the federal rules doesn’t mean that the state courts interpret them in the same way (i.e., Twombly, Celotex, discovery, etc.) And a some of what most of us teach in the civil procedure (basic) course is federal-court specific, like Federal SMJ, or Federal Claim/Issue Preclusion, or Class Action Practice.”
Indeed. Sometimes the rules can actually be quite different. For example, despite the existence of language roughly analogous to the Article III case and controvery
requirement, most states construe their jurisdictional grant quite differently than do the federal courts. State taxpayer lawsuits, for instance, are widely permitted in state court (for those who have forgotten, they’re generally disallowed in federal court, with one exception).
Speaking of, anyone want to read a state taxpayer standing article?
Lemming of the BDA - February 21, 2012 at 5:08 pm
But, how many civil procedure scholars have litigated a case in state court (and doubly – how many did so as anything but a junior associate and/or while using local counsel)?
Danielle Citron - February 22, 2012 at 1:21 pm
This has given me much to chew on–as I teach the Rules part of Civil Procedure too. Interestingly, class actions is an area that demonstrates the importance of federal rules. CAFA ensures that more state classes will be removed to federal court–with its restrictive requirements. And Phillip Morris v. Scott seems likely to end up with even more federal oversight of state procedure. Perhaps civil procedure courses should more often include state practice and shave off a bit, perhaps from SMJ. I incorporate procedural due process into my CP I course, on the grounds that they need to know it and it pertains to state action that treads on constitutionally important rights with meaningful hearings. Great post and dialogue.
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