Wednesday, September 06, 2006
Research Canons: Civil Procedure
Our first subject matter for the research canons project is Civil Procedure. (See here for a discussion of the research canons project.) Please comment on the books and articles that are essential to a new academic in the field. There will be a separate category for Federal Courts/Civil Rights.
One note: research canons may call to mind older, classic works that provide the foundation for today's research. However, new canons are also extremely useful -- these are the current works that are driving the debate in the field. In fact, new canons may be more useful to new academics, since they are less likely to have seen these in law school. It may make sense to differentiate between these in your comments.
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Glannon, Examples and Explanations.
Posted by: Orin Kerr | Sep 6, 2006 1:48:15 PM
Orin, I'll bite: In what sense is Glannon's book "canonical?" I appreciate that this simply blows up the question of canonicity even before Matt's project gets off the ground, but do you mean to say that Glannon is "canonical," or 'merely' that he is "useful?"
Posted by: Paul Horwitz | Sep 6, 2006 2:09:57 PM
It can't be that there is nothing new or old in Civ Pro, can it? Is Civ Pro too big a category to be useful? Is it too doctrinal? How about all the empirical work being done on civil litigation, juries, and judges? References to some of this literature would surely by helpful to folks starting out or going on the market.
Posted by: Matt Bodie | Sep 6, 2006 2:26:34 PM
How about David Rosenberg's 1984 article on the Causal Connection in Harvard Law Review? Or Fiss' piece Against Settlement?
Posted by: Dan Markel | Sep 6, 2006 3:10:10 PM
I don't buy that Gannon is "useful." I would argue, to the contrary, that his is the single most widely read work on Civil Procedure in every, and perhaps in any, law school.
It is therefore by definition the Canon. What is Erie, if it be not his chapter on Eerie Erie? Of course, my prawf disagreed with Glannon's view... but since the majority of the class didn't understand Erie one way or the other, and since they will more likely pick up Glannon than anything else if they have to review the material, the insurrection fails.
Glannon wins - just as the Multistate Bar Exam is the most widely studied piece of criminal, property, or tort law - despite being admittedly false to fact.
If we're being serious, there are more "canonic" works that are or should be canon. But I'm not the one to suggest what they are for Civ. Pro.
Posted by: Eh Nonymous | Sep 6, 2006 5:07:16 PM
Ely's "The Irrepressible Myth of Erie"
Burbank's late-1980s work on the history of the Rules Enabling Act of 1934
Resnik, "Managerial Judging" (on the changing role of judges under the Federal Rules in the 1980s/1990s)
Martin Louis, "Federal Summary Judgment: A Critical Analysis"
David Currie, "Thoughts on Directed Verdicts and Summary Judgment"
Posted by: Howard Wasserman | Sep 6, 2006 5:16:59 PM
I'd add to Howard's impressive list Cover and Fiss's "The Structure of Procedure."
Posted by: Steve Vladeck | Sep 6, 2006 5:23:37 PM
If we're talking about works that we tend to assume other proceduralists have read and that become shorthand for particular issues or points of view, some contenders include Subrin, How Equity Conquered Common Law; Resnik, Managerial Judges; Fiss, Against Settlement; Ely, The Irrepressible Myth of Erie; Langbein, The German Advantage in Civil Procedure; Burbank, The Rules Enabling Act. Lots of others, of course, but those are a few that come to mind quickly. I think it's harder to identify the canonical among more recent works -- not because they're less important, but because it takes time for ideas to shake out.
Posted by: Howard Erichson | Sep 6, 2006 5:44:40 PM
My answer was supposed to be funny, actually: I was poking fun at the fact that most new academics need to learn the basic nuts and bolts of the field first rather than get hip to scholarly trends.
Posted by: Orin Kerr | Sep 7, 2006 9:35:16 AM
I'm an outsider, and this is late, but it seems to me that the civil procedure people like to look at complex litigation more than they do summary judgment or rule 12. So there must be something seminal on class actions or multidistrict stuff. In the Resnik vein, there's Abram Chayes, The Role of the Judge in Public Law Litigation, and also Colin Diver, The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions, which might deserve mention only because they preceded Managerial Judging.
Posted by: David Zaring | Sep 7, 2006 10:50:28 AM
On MDL and other federal complex litigation, the FJC's Manual for Complex Litigation is indispensable. But can a regularly updated book (it's up to M.C.L.4th) be canonical? Key articles on class actions include Coffee, Class Wars and Shapiro, The Class as Party and Client. Maybe at some point the ALI's new project on aggregate litigation will become part of the canon, but it's still early in the process.
Posted by: Howard Erichson | Sep 7, 2006 4:00:46 PM
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