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Tuesday, September 18, 2012

Civ Pro, Fed Courts, and figuring out what goes where

Two commenters on Trey's post on Erie sugget that the weeds of the doctrine belong in Fed Courts rather than Civ Pro, especially in light of the general reduction of Civ Pro to four hours. The problem is that there are other subjects besides Erie that potentially could go in either course. And, of course, Fed Courts is usually only three hours (at least at my place), so there is only so much that can be moved to Fed Courts without overloading that class. Plus, as Steve has written, there are competing theories of what Fed Courts should be, which naturally affects what gets covered; I structure my Fed Courts class as I do precisely because it flows from my own four-hour Civ Pro class.. Finally, I have the benefit of also teaching Civil Rights, which really is an advanced Fed Courts class, into which I can move some topics. But Civil Rights is not a hugely subscribed course (certainly compared with the other two), so there is the risk that not enough students will get some material.

The point is, any coverage decision in Civi Pro has a downstream effect. It seems to me that these are the "movable" topics that could go in any of the three classes: 1) "Advanced" Federal Question Jurisdiction (embedded federal issues, private rights of action, etc.); 2) Erie; 3) Appealability (both to the courts of appeals and to SCOTUS); 4) Habeas (post-conviction and national security); 5) Eleventh Amendment; 6) Abstention;  and 7) Probably others that I'm forgetting.

My choice as been to keep Erie in Civ Pro, move Federal Question and Appealability to Fed Courts, move Eleventh Amendment to Civil Rights (beyond a 30-minute lecture on it in Fed Courts), and largely skip Habeas (beyond a quick overview on the way to teaching Heck v. Humphrey).  I cover Absention in both Fed Courts and Civil Rights, with a narrower focus in the latter. Of these, I am rethinking putting the Eleventh Amendment back into Fed Courts (while also covering a narrower version in Civil Rights), provided I can figure out what to remove in its place.

Posted by Howard Wasserman on September 18, 2012 at 09:49 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink


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Howard -

Do you think your situation is common with respect to your being the one person who teaches those courses? I certainly agree with you that coverage decisions in one course have effects in other courses, although maybe this is only true or especially pronounced in civil procedure courses (and I would add Conflicts to the list of courses affected by Erie coverage decisions). It would seem some coordination would be needed if these different courses were taught by different professors. I guess I'm just wondering if you know how these decisions are made at institutions where different people might be teaching the different affected courses.

Posted by: Anon | Sep 18, 2012 10:36:42 AM

Thanks for the post, Howard. Interesting stuff, at least to us proceduralists.

Like the commenter above, I wonder if some of the shaping and shifting you do is a function of you being at the helm of all of the classes involved. That strikes me as unusual, all things considered, not least because most schools have multiple civ pro sections but only one fed courts class per year. (Again, that's true for most schools, not all of them.) For lots of civ pro teachers, then, the choice to glide past Erie puts pressure on other faculty--faculty that may well actually teach Erie in their civ pro classes and thus not think it needs (re)covering in Fed Courts. At the least, as anon notes, it requires some sort of coordination, and we all know how well that tends to work.

In any event, I'm glad you called attention to this issue. I was struck, as were others I know, by the glibness of the "cut Erie and teach it somewhere else" posts (especially Professor Hendricks') -- not because it's Erie, but because that somewhere else often means someone else too.

Posted by: SparkleMotion | Sep 18, 2012 10:46:49 AM

Both fair points that I shouldn't have elided in my original post. I do teach all three classes, although I am not the only one. At my school, we have three sections of Civ Pro (usually taught by three different profs, although this year I am covering two sections); we never have explicitly coordinated, but from conversations I have a general sense that we cover the same basic, standard stuff (in varying degrees of detail). We also have two sections of Fed Courts; the other section I know is very different from mine, if for no other reason than he uses Hart & Wechsler and I don't.

I take the general points above that I/we should make better efforts at coordination, at least informally. I probably think about the connection among the courses *as I teach them*, rather than more generally. Although, as noted, that can be tricky to navigate.

Anon raises another good point: Is this unique to procedure courses? Are there other curricular areas in which we see similar overlap and downstream effects among courses?

Posted by: Howard Wasserman | Sep 18, 2012 11:32:31 AM

We have located Erie in our Fed Courts coverage, and it's been there for years. As a newcomer, I've observed that it creates its own problems as only half of our students take that course. Those students are occasionally confused in their upper-level specialty courses as to why state law is being applied sometimes but not others (and my colleagues who teach everything from Admin Law to IP have commented on the perplexed looks on student's faces when they touch on these issues).

Last year I experimented with carving out at least four classes at the very, very end of my four-unit civil procedure course for some "bonus coverage" that is "Erie-light": Erie, Guaranty Trust, Byrd (maybe), and Hanna. Then we're done. My colleagues do not cover this bonus unit (they cover something else, or spend more time on joinder).

This coverage is enough that they can make their way through garden-variety Erie problems, and they at least know why the FRCP applies in diversity cases. The morass of Ragan/Walker/West/Gasperini/Semtek/Shady Grove is left to the FC course, when they are better equipped to handle the level of difficulty. This unit also comes after they have finished their structural constitutional law course in the Spring, so they are better equipped to talk about federalism and separation of powers than they were first semester. It's not perfect (it obviously oversimplifies...), but at least they'll know what summary judgment standard applies in a diversity case in federal court, even if they choose not take FC. It's also just enough to squeak through Erie-related bar exam issues in our state (I can't imagine any bar examiners daring to tread into the morass, unless doing so by accident--but it's not uncommon to have straight-forward, simple Erie-related issues on the Federal Jurisdiction essay here).

As for the relationship between courses, I would add Federal Complex Litigation into the mix. We don't cover Rule 23 in the first year--that's in the Federal Complex Litigation course (which relatively few students take). Some year, I may substitute my "Erie-lite" bonus coverage with "Rule 23-light" and see if it works better...

Posted by: Junior Civ Pro Prof | Sep 18, 2012 3:01:05 PM

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