Tuesday, July 27, 2010
More things to know if you teach civ pro
Scott's post on civ pro provides great information about the many resources for civ pro professors (and scholars) to learn the subject, keep up with new developments, meet fellow travelers, and publicize work and ideas in the area (all stuff I wish I had had in one spot when I started). In the spirit of Paul's post on organizing and teaching con law, I want to offer some additional "what you should know" thoughts, focusing on organizing and teaching civ pro.
1. Much depends on how much time you have. Your teaching experience will vary greatly depending on where you are teaching and how civ pro is structured. Civ pro seems to be the course that has not yet fully made the transition to the typical one-semester/4-credit course across the board but is rapidly moving that way--judging from my time at the AALS Mid-Year meeting, this is a subject over which civ pro professors spend a great deal of time fretting. You may have anywhere from 4-7 required hours in one or two required semesters; you may have 4 required hours and a strongly recommended 3 hours in a second semester. You may have to cover both Rules/Procedure and Jurisdiction, or you may only have to cover one or the other. Jurisdiction may be required or may just be part of the optional second course.
2. Rules v. Jurisdiction first does not matter, students will complain either way. The other never-ending debate in civ pro teaching (particularly in the compressed 4-credit class) is whether to start with pleading/rules or jurisdiction (and, if jurisdiction, subject matter or personal). At the end of the day, I am not sure it matters. I have heard good pedagogical arguments for each way. And students complain about either one. I am a rules-first guy, because I think it is more important for them to get the overall framework of litigation, then to fill-in the content of the rules. I am swayed by that and so are many others. Others think choice-of-forum should come first because that is the first consideration when filing (students are swayed by this one). Others (including one of the best teachers I know) believe that personal jurisdiction, grounded as it in reasonableness, is a good, instinctive place for 1Ls to begin. Again, I am not sure there is a right answer. So do what you feel comfortable doing.
3. A little history does not go as far as it used to. Trying to cover history is essential, but increasingly difficult in the shorter course. There no longer is time to get into long details about the evolution from causes of action to code pleading to notice pleading. But some overview remains necessary. Similarly, just as Paul suggests that one cannot understand modern Commerce Clause doctrine without talking about pre-Lopez cases, one cannot understand modern pleading doctrine without talking about pre-Twiqbal cases. And consider how important is it to teach Pennoyer and pre-International Shoe (or even pre-World Wide) cases in depth, in light of these new time constraints. For what it's worth, I do a quick overview of Pennoyer and Shoe, then get into the real meat with World Wide. This is a balance. Some history is necessary, but probably not as much as in the past.
4. Find a practical balance. When teaching the rules, some practice orientation is necessary and more effective than using cases. Use sample pleadings to show what complaints look like--how they are structured, what joinder of claims and parties looks like, how much detail to include, etc. Distribute discovery documents (production requests, interrogatories, etc.). Distribute summary judgment motions and supporting documents. You can do this with independent documents or by using a case companion ("A Civil Action" or one tied to Jones v. Clinton). Use big in-class hypotheticals (even if unrealistic) to show how the various joinder rules fit together--I use a great one from Glannon's. This is a central concern underlying the uncasebook that I former GuestPrawf Hillel Levin and I have discussed.
5. Make use of the opportunities to teach statutory interpretation (especially if you are do the rules first). At the very least, impress on them the importance of, you know, bringing the rulebook, having it open to the applicable provision, and reading along during the conversation (surprisingly hard to get them to do). Impress on students that preparing for a class with statutes/rules means reading and parsing the text of the rule--it means reading so they can explain, in plain English, what the rule/statute means and how it operates. It can be a good introduction to some principles of statutory interpretation. And you can emphasize the connection among statutory text and interpreting decisions--and the difference between statutory interpretation and common law rulemaking. Civ pro is a unique opportunity to teach this--one of the few such opportunities in the 1L curriculum.
6. Rely on other parts of the curriculum to fill-in gaps. Civ pro is a spring-semester class at FIU, so I get the benefit of the second semester of Legal Writing, where the students do summary judgment motions and appellate briefs, based on a full record created by the professors in the program, including sample pleadings, depositions, etc. So they see sample litigation documents through this class. Similarly, rely on other courses to cover stuff that has been pushed out by the shrinking of civ pro. For example, I cover Federal Question jurisdiction only in broad overview in civ pro; I save the detailed stuff (Grable, complete preemption, etc.) for my Federal Courts class. Some have argued for saving Erie for Conflicts (I don't, but that is because I like teaching Erie).
7. Introduce and overview concepts in the details of other cases. Again, this is a product of the shrinking civ pro class. For example: I cannot cover post-trial motions in real detail. But one of the major Erie cases, Gasperini v. Center for Humanities, involves the appropriate standard for Motions for New Trial in diversity cases. So I start teaching the case by providing an overview of the post-trial processes; students at least are introduced to FRCP 59 and have heard of it, even if we cannot get into a lot of detail. Similarly, you can teach personal jurisdiction through an enforcement-of-judgment case and talk about the process and limits of enforceability.
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FWIW, one of the better arguments for "rules first" is that you remember more of what you learn first, and day to day in practice, rules are more relevant than jurisdiction (where most of the cases that come up are easy ones).
Re: History, I would disagree with regard to the importance of Code pleading. Iqbal makes the concepts behind Code pleading, which articulated a theory of pleading that is effectively a cogent safe harbor in an era of stricter pleading rules, much more relevant than they were a few year ago. One common interpretation of "Twiqbal" is that it is a de facto return to fact pleading but that will make no sense to someone who doesn't know what that involved, and history is much harder to learn outside law school than black letter rules or cases.
Posted by: ohwilleke | Jul 27, 2010 7:59:36 PM
Howard, I am curious whether you will continue to teach Gasperini now that we have Shady Grove? In an ideal world I'd teach both, but I've been thinking of covering Erie, York, Byrd, Hanna, Walker, Stewart, and Shady Grove ... which is already a lot given we have a one semester 4 credit class for Civ Pro. I am curious what you and others have decided to do in light of Shady Grove? I was planning on saving it for the class actions part of the course at the end which I also use to review all that we've seen before (sort of an old wine in a new vessel approach).
Posted by: I. Glenn Cohen | Jul 28, 2010 10:49:58 AM
ohwilleke, you might be right that rules matter more day-to-day. But how much do law students retain from their first year after they graduate? My assumption has been that students retain, if anything, only vague concepts -- a lurking sense that there is an issue here that they once read about. (Sometimes I flag treacherous issues that will not be on the exam precisely in order to plant those Manchurian-Candidate-type seeds.) If there are any recent grads around here who want to confirm/deny my working theory, I'd be interested.
BTW, I start with rules, just because I like the rules, and like jurisdiction less. I stop the Erie cases with Hanna, which is complicated enough and gets the basic idea across.
Posted by: Bruce Boyden | Jul 28, 2010 11:56:58 AM
I will continue teaching Gasperini rather than Shady Grove--partly because I do not cover class actions and partly because Gasperini provides some elements of the analysis that Shady Grove does not (for reasons I discussed in a presentation at the Civ Pro workshop, actually).
Ohwilleke: I still provide history, for all the reasons you give. But there necessarily must be a lot less of it.
Posted by: Howard Wasserman | Jul 28, 2010 12:18:36 PM
Great post, Howard!
Posted by: Danielle Citron | Aug 3, 2010 2:35:00 PM