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Friday, December 18, 2009

Anticipating teaching Iqbal

One (I would argue the only) benefit to having civ pro as a spring-semester course is that I get an extra five months to digest the events of the prior term and figure out how to incorporate them into the class and how they change everything I'd done previously. Given the Supreme Court's recent pleading-related mischief, that's not necessarily a bad thing. I spent the past couple days working on my syllabus and course blog, which at least got me thinking (for the first time) at least about where to work Iqbal (and Twombly) into the material and how to structure the overall discussion. This led me to the following thoughts.

First, how much time should we spend on Conley itself and everything that came prior to Twombly? My instinct is to cover it just as I did previously, then talk about Twombly/Iqbal as the current-and-future debate (that also is how my casebook authors do it). Partly it is because we cannot understand the new regime without understanding Conley and everything that came before 2007 (Charles Clark, the Forms, etc.); partly it is because the new regime seems so inconsistent with everything that came before; partly it is because we do not know how long the new regime will last, given the murmurings in Congress. On the other hand, at what point does teaching Conley become a bit like teaching Pennoyer--wonderfully nostalgic as a law-school rite of passage, but practically unimportant (beyond a broad overview) and time-consuming?

Second, my current idea is to cover Conley/"old" notice pleading and FRCP 9(b) together as two competing possible pleading systems (notice v. fact pleading) co-existing under the Federal Rules and the movement and overlap between them. I also can talk about the relative unimportance of FRCP 12(b)(6) under a pure notice-pleading system. I then turn to Twombly/Iqbal as the new regime, straddling (or blurring, depending on your perspective) the line between the two. The nice thing about teaching Iqbal is, I think, that it presents what purports to be a clear two-step approach to analyzing pleadings. We then can get into the various proposals to undo Twombly/Iqbal and return us to some form of Conley pleading, which also can provide a nice window into the federal rulemaking process specifically and the process for making legal rules generally. Ultimately, the point may be to tell students that the pleading rules they are learning now may look nothing like the pleading rules they will see when they hit the real world in two years.

I would love to hear thoughts from those of you who already went through this in the fall.

Posted by Howard Wasserman on December 18, 2009 at 10:30 AM in Civil Procedure, Howard Wasserman | Permalink

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Howard--

I have been having the same internal conversation as well, and I came up with something similar to your approach. (Teaching the history also provides an opportunity to get students to think about the Supreme Court as an institution; didn't the court reject heightened pleading only a few years ago, saying "take it to the committee if you don't like it"? So what changed?)

Because we are in a moment of flux, and we are all trying to figure out what is going on and what will happen, it is acceptable--maybe necessary--to do the "this is how it was, but this is how it is now, and here is how it may shake out bit."

One thing I keep telling myself, though, is that I can't do it this way forever. That is, if Twombly/Iqbal sticks, then one day I will have to get rid of most of the Conley materials (I will also assign form 11, Swierkiewicz, and Leatherman this year). I sometimes have the feeling that law professors teach old material because THEY have a sense of history, and, hey, this is how it has always been done; but I don't think students care or need to care about the history for its own sake. I'm thinking, for example, of the Celotex trilogy. If you want students to understand what is going on in summary judgment today, the trilogy is nearly useless. And yet there those cases are, in every casebook, without very many new cases showing how far "no reasonable jury" has been stretched. Why do it this way? I think the books and some professors are caught in the thrall of the Supreme Court, and in identifying turning points. But these things aren't that important to our students. (Another example might be Pennoyer, but I don't teach that part of the course, so don't have a strong opinion.)

This is all a long-winded way of saying that teaching the way you have described makes sense (to me) for now; but it ought to be an interim approach, in my opinion.

Posted by: Hillel Y. Levin | Dec 18, 2009 12:13:50 PM

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