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Friday, August 24, 2007

Big Changes in Civil Procedure Part II: The Incredible Shrinking First Year Course

Before I delve into civil procedure, those of you who have submitted/are submitting articles this fall may like this post on Concurring Opinions on the subject of law review submissions.

And now, the incredible shrinking civil procedure course.   The movement to reduce credit hours for first year courses has been on the march for some time now.   People have given various reasons for this.  Some say professors want to teach less.  That explanation only applies to those  schools that determine teaching load by course.  Professors at schools that determine teaching load by credit will prefer to increase the credits of any single course to avoid prepping more courses.   The more academic reason is the desire to add more and more things into the first year curriculum.  Some of you may recall Harvard's announcement to include international law in the first year and a problems course.   

So whereas civ pro used to be a 6 credit two semester course, in many places it has moved to a 4 credit one semester course.   This means that civil procedure professors now need to cut more and more from the curriculum.  What should go, pleadings and discovery or Erie or due process?  What can other professors then assume about the civil procedure background of students?  I've heard that many upper level students taking federal courts courses don't know what Erie is.   While Erie questions don't come up that often in practice, the doctrine does lay an important foundation for understanding our federal system that a student likely won't get elsewhere.   Similar arguments can be made for every aspect of the course.  Shouldn't students have a basic understanding of the values and theoretical underpinning of the adversary system?  Don't students who intend to be either litigators or transactional lawyers need a realistic sense of the stages of the lawsuit, the costs of each stage and the rules surrounding settlement of suits?  (That is, something more than "suing is really expensive").   And shouldn't they know something about privilege doctrine so they don't inadvertently waive the privilege for their client?  Unless professors coordinate, the students may never learn these things in upper level courses, but they can't all be fit into a 4 credit class.   I know, because I've tried.  Yet coordination is difficult because of academic freedom concerns -- why should my decisions as a civ pro professor in the first year dictate what my colleagues cover?   

I think this is a serious problem as we try to shove more and more into the first year curriculum and the trend is certainly towards a permanent reduction in civ pro teaching hours.  I don't think there's any going back.  But it does place a real burden on upper level teachers that should not be ignored.  And it is a genuine loss for students.  I've heard that in student post-grad surveys, civ pro was one of the more useful courses for practice.   And it is, after all, our mission to prepare students to become lawyers.

I wonder if professors teaching other first year areas, such as contracts, torts, criminal law, property, and constitutional law (for some schools anyway) feel the same way.

Posted by Alexandra Lahav on August 24, 2007 at 11:00 AM in Teaching Law | Permalink

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Comments

If the goal's to get ConLaw in, then I suppose that's justifiable. On int'l law, I'm not suggesting that law students shouldn't be "expos[ed]" to international law or comparative materials, but are you really saying that it's more beneficial for the average law student to be spending time in their first year in international or comparative law than it is for them to be learning the stuff in CivPro that's being cut?

Posted by: Simon | Aug 27, 2007 8:43:31 AM

Although I disagree with you, Simon, on the merits (lawyers in today's day and age -- many of whom might be corporate lawyers rather than civil litigators -- would probably benefit from exposure to international or transnational law), Hastings is trimming Contracts and Civ Pro to make room for Con Law in the first year. Many are trimming to make room for a statutory course, admin, or legislation.

Posted by: Ethan Leib | Aug 26, 2007 11:15:02 PM

The side of this that has been focussed on less in the comments is the side I'd be more interested in - all the discussion has been framed on the assumption that the course being shortened is appropriate and so the question is what has to go to make that happen. But I'd be more interested in what's displacing it to lose those credit hours. Alexandra noted it was int'l law at Harvard - what's chopping those extra hours of CivPro in other schools? whatever the merits and demerits of emphasizing jurisdiction and Erie over pleading and process (per Ethan) or vice-versa (per Anon), surely both ought to enjoy priority over - of all things in the world - international law. Is this idealistic, but surely the antecedent directive that "something else" is more important than CivPro and is creating this discussionis the question to be fought over?

Posted by: Simon | Aug 26, 2007 10:15:25 PM

Steve:

At least with respect to legislation, regulation, and administrative review, many schools are putting those things into the first year. We've had them there at Hastings for some time. But of course you are right: a lot of stuff we just hope students take in later years. Still, we must make hard choices about what to include in the first year and what to force them to take. Those are the stakes and nothing you have said suggests otherwise.

I have no idea what confused you in the last paragraph. I wasn't doubting that the existential questions to which you adverted could be taught in connection with pleadings. What I doubted is that most Civ Pro teachers outside the top 15 schools use those topics as an opportunity to get existential. As the discussion here reveals, student tend to think of pleadings as more practical and less existential -- and I think they probably get that idea from their teachers. By contrast, the Erie doctrine and jurisdiction seem to me to lend themselves naturally to important and hard doctrinal conversations -- and by their very nature raise structural issues about our federalism and governmental structure. I may be wrong about this -- but I don't think my views are idiosyncratic.

You may have gotten my colleagues' reasoning just right. The truth is, I have no idea what they were thinking because the issue wasn't deemed worth discussing at a faculty-wide level. Maybe deference is the right response, in any case: who am I tell the Civ Pro teachers what to teach? But the idea that I'm not entitled to my views and to express them is what I found most odd.

Posted by: Ethan Leib | Aug 26, 2007 6:39:57 PM

Ethan said: "The question is about what we force first-years to take: as I've said all along, it is my opinion (and others have reasonable ones too) that all lawyers should graduate law school having thought about jurisdiction and Erie. The only way to make sure they do is to put it in the first year."

However, many essential topics are not addressed in the first year curriculum at most schools. A short list would include: the limited liability of corporations; the hearsay rule (and other evidentiary rules); appealability of judgments; legislation; constitutional criminal procedure (including the exclusionary rule and the privilege against self incrimination); regulation and administrative review.

A good argument could be made that any of those could be more important and challenging than Erie, yet we trust students to explore them in upper level courses.

Frankly, Ethan, your concluding paragraph is a little confusing. You seem to question whether "pleading" really does raise existential questions, and then you express "hope" that Erie-omitting Civ Pro professors will address "intellectually fun" stuff. But if you don't trust them to engage pleading at an intellectually challenging level, why would you trust them to teach Erie in the first place.

Perhaps your colleagues had the following analysis in mind when they rejected your view: (1) In terms of content, Erie and jurisdiction are no more important than many other concepts that are covered in elective upper class courses; (2) as an intellectual exercise, Erie/jurisdiction is not appreciably more intellectually challenging (or fun) than other issues that can be raised in the context of pleading, causes of action, discovery, or summary judgment; (3) therefore, it is reasonable to omit Erie and jurisdiction when reducing the credit hours for Civ Pro.


Posted by: Steven Lubet | Aug 26, 2007 1:52:28 PM

I didn't realize this debate was still going on. We cut Civil Procedure to four credits about five years ago, principally to distribute hours more evenly among the faculty, many of whom resented the fact that first year teachers were treated as first among equals even though they were doing the simplest work. The same "sky is falling" arguments were made against the move then, the faculty rejected them, and the procedure teachers adjusted. I still teach Erie (which I agree is interesting - I would even say fun - though I don't think you can get it from a hornbook, that is a genuinely ignorant comment), as well as all of the major "jurisdictions" (personal, federal q, diversity, removal, supplemental, transfer), and while I do not cover anything as deeply as I would like, I thought the same thing when I had six hours of class to work with. Law teachers are a peculiar lot. They can get excited about the most insignificant things. Perhaps someone will develop a machine graded test that can select for that quality and weed those who are good at it.

Posted by: RJC | Aug 26, 2007 1:44:18 PM

Steve:

Saying that upper-level courses can fill the gap is besides the point. That is true of anything. We could have Civ Pro II or Litigation courses to cover the omitted pleadings material. Or we could dump the material into a "Lawyering" course. In any case, outside of the top 15 schools, students do not widely take Fed Jur, so leaving it for Fed Jur will often mean that students get no exposure. Conflicts is also not a required course -- and there is simply no room in Con Law to do this stuff (especially not now, when Art II is no longer a simple discussion of the Steel Seizure concurrence). The question is about what we force first-years to take: as I've said all along, it is my opinion (and others have reasonable ones too) that all lawyers should graduate law school having thought about jurisdiction and Erie. The only way to make sure they do is to put it in the first year.

Pleadings may very well raise existential questions. Indeed, I very much hope those who opt to teach the 4 unit course that omits Erie and jurisdiction use the opportunity to address the intellectually fun stuff you mention -- and not teach it as the "how-to" course "Anon" has been recommending. My worry is that it will be taught as the latter -- and that would be a shame for our students.

Posted by: Ethan Leib | Aug 26, 2007 1:00:17 PM

Ethan: I don't understand why you think that jurisdiction "is much more intellectually engaging than pleadings." For the most part, jurisidiction simply determines which court will hear a particular case. The more complex questions -- Erie, choice of law -- are addressed in other courses such as Fed Jur, Conflicts, and Con Law, and can therefore be more easily dropped from Civ Pro.

Pleading, on the other hand, addresses the very essence of the adversary system. What does it mean to state a cause of action upon which relief can be granted? How much evidence must a plaintiff produce in order to warrant a trial? How much privacy does a defendant lose simply by virtue of being sued? How much help do courts have to give the parties, and what is the fair allocation of burdens?

These and other "pleading" questions raise intellectually complex -- indeed, existential -- issues about the adversary system, and they are not covered elsewhere in the curriculum.

Posted by: Steve Lubet | Aug 26, 2007 12:41:33 PM

I don't get your implication. Students were free to express their preferences about their Civ Pro classes (a class they know I don't teach). Nothing was at stake. Grading was completely anonymous; and I don't teach any seminars. More, students can always avoid me after the first year if they want. Even more fundamentally, the idea that I'd hold it against a student or refuse to write a letter of recommendation for someone for articulating a preference for a Civ Pro class with pleadings is just insane. The entire point of asking students their opinion was not to firm up my own; it was to give them a voice in a process that otherwise did not consider their views. Maybe the best practice would have been to do it anonymously; but I wanted to have a conversation about it, not read 85 monologues. In any case, at least I gave people a heads-up; anyone who wished could have followed up anonymously with me or with the administration.

I am glad, however, that the rest of my response left you with nothing else to do other than go on the attack for something else. If you have personal issues with me, feel free to follow up off-line and leave our readers out of this pettiness.

Posted by: Ethan Leib | Aug 26, 2007 12:05:08 AM

I spoke with my 85 first year students to get their feedback about what they thought about the redesign of the first year.

Ethan: Did you ask their views to be delivered anonymously in writing? Or publicly, in your face, while you are still their teacher and a source of recommendation letters, with discretion over non-blind portions of their grades, now and in future seminars? Just wondering.

Posted by: anon | Aug 25, 2007 2:49:08 PM

Anon (I really intend to make it a practice from this point forward not to respond to obnoxious anonymous people anymore):

As I think you've seen from this short discussion, plenty of reasonable people differ about this question. Calling people you disagree with "arrogant" and "smug" does very little to advance your perfectly plausible position.

Not that I owe you any explanation -- but as our school was debating this question, I spoke with my 85 first year students to get their feedback about what they thought about the redesign of the first year. No one else at Hastings had asked for student input so I took their views to the faculty meeting. Guess what? They wanted jurisdiction and Erie, not pleadings. Maybe that's because Hastings students are more interested in learning interesting things than you think. Your assumption that the vast majority of Hastings students are going to be litigators at small firms is itself flawed. In any case, the first year curriculum (at Hastings and everywhere else) is not designed for practice: students generally will not need to know Civ Pro, Crim, Torts, Property, Contracts, AND Con Law. It is the rare lawyer who needs to be fluent in all these subjects. We give a slate of courses to introduce students to a broad array of issues, subjects, structures, areas, theories, and ideas because we think that familiarity with a lot of different things makes them better lawyers in the long run. Those students who go on to work at small firms but do largely corporate work or criminal work have little need for anything in Civ Pro (though I'd still guess that Erie, choice of law, jurisdiction, and class actions would be more useful than pleadings). First-year curriculum design cannot just be about preparation for practice, no matter what tier of school we're discussing. It is no accident that there is little variation in the first-year curriculum among schools. We're trying to achieve something else. It may be misguided to aim for this "liberal education" of lawyers, a by-product of every school following in Harvard's footsteps. Perhaps law schools should be more pure vocational schools where we predetermine for students what they will become and pigeon-hole their prospects. My view is that I'm glad we don't take that pessimistic posture at Hastings. I should think it would be far more smug and arrogant to write off my students' capacities for interest beyond what will serve them in some job they may not have, get, or want.

Posted by: Ethan Leib | Aug 25, 2007 2:10:16 PM

Michael: you've just shown why I am right. Complex jurisdictional questions are simply not important for most lawyers' everyday lives. The vast majority of cases involve no jurisdictional problems whatsoever, and it's enough for a firm to have a couple of narrow jurisdiction specialists to cover a rare case where such problems arise. That’s exactly the pattern you’ve described. Heck, your law firm could even afford to have nobody on staff to know jurisdiction before you arrived! A student who would like to become a go-to person for jurisdictional questions should take Federal Courts. Basic Civ Pro should be reserved for things that really matter.

Posted by: anon | Aug 25, 2007 12:42:45 PM

Anon -

I'm not sure I agree with you. I went to Chicago and then into practice at a small firm. I am glad I had both the procedural areas and the jurisdictional areas. That said, in practice the jurisdictional issues were far more important in my practice. Here's why:

Every state has different procedures, even if the follow the Federal Rules, and every firm has its own procedures and biases for how it likes to do things. For example, I practiced in California, which had a whole different set of rules. I learned most of what I know about practice there from:

1. Looking at past work at our firm
2. Reading practice guides (and the rules!)
3. Doing it, and getting feedback from peers and mentors

On the other hand, my deep understanding of jurisdictional issues, subject matter and personal, choice of law, remand and removal, etc. served me quite well at the firm, as those who were in practice for a while lost touch with these complex issues in favor of day to day practice. I quite quickly became the person everyone asked about the important and complex issues in "constitutional" civil procedure. To this day I assist my former firm with such complex questions, such as a recent removal of a 2 year old case that should probably be remanded. They don't need the help knowing how to file the motion, they need help figuring out how the well pleaded complaint rule applies in this particular situation.

I'm not advocating dumping the procedural parts - I tend to agree that they are important. but if something has to be cut and something has to stay, I think the complex material is more important to lifelong understanding.

Posted by: Michael Risch | Aug 25, 2007 7:09:10 AM

Bev: I think you got it exactly backwards. Erie is the kind of stuff that one can learn by reading a decent hornbook. But one simply cannot, cannot learn the complexity of the modern litigation system without the guidance from an experienced and thoughtful teacher. The point is not to memorize the names of documents presented to the court, but to understand the litigation process as a whole – the complex interactions among small pieces of the big jigsaw puzzle; the purpose of individual elements; their interplay, duplication, uniqueness, and so forth.

Showing students the beauty, logic, and purpose of this structure by zooming in and out from big picture to the smallest detail is difficult and important. Presenting this subject as some sort of mindless monkey-see-monkey-do, read-practitioner-guide thing shows real ignorance.

Posted by: anon | Aug 25, 2007 2:18:34 AM

Anon: you can learn the rules of pleading by reading a practice guide - jurisdiction and Erie are more complex and so students might benefit from more of an explanation. And besides, Ethan is right, they are more interesting. Us Hastings students, even though we "have to" practice (um, I want to law school with that very goal), certainly would prefer to study things that are more interesting.

Posted by: Bev | Aug 25, 2007 12:57:20 AM

Does anyone else prefer "graduate from" law school to "graduate" law school ? I know I do.

Posted by: keith talent | Aug 24, 2007 9:38:14 PM

I felt perfectly comfortable expressing the view to my colleagues ... that removing jurisdiction and Erie from the course struck me as the wrong way to go. Not only because my 4 unit class at Yale was all jurisdiction and Erie -- but because I continue to believe that the material is much more intellectually engaging than pleadings. More than that, it is foundational for many more courses than the other material is. For those who want purely litigation-oriented coursework, they can apprentice or take upper-level courses.

Ethan: I really think you should revisit your attitude toward the students you are teaching. Unlike Yalies, your students will actually have to practice, and most of them will end up in small firms, where they will not be sent to lavish day camps to learn the law. Your students will need to jump right in and know basic things about litigation, like pleadings, which you find to be not "intellectually stimulating" enough to be included in the curriculum. It is smug and arrogant beyond belief to suggest that your students will just have to "apprentice" to learn necessary concepts, while you'll indulge your intellectual passions teaching them fanciful theory that has very little use in the daily life of an ordinary lawyer.

Perhaps your views were "ignored" (or, more likely, your wise faculty found them lacking) not because you are not a civ pro specialist, but because you have no idea what your students really need to know and what their lives will be like when they graduate.

Posted by: anon | Aug 24, 2007 6:53:50 PM

Like Hastings, Notre Dame is reducing the first-year Contracts and Civ Pro classes to four credit-hours (from 5). (And, we are increasing the first-year Criminal Law and Constitutional Law classes from 3 to 4.) These strike me as positive and pedagogically sound developments. I don't mean to be flip about the matter, but I cannot help thinking that all of the first-year courses could easily be twice, or half, as long as they are. I tend to be skeptical about claims (with a few exceptions) that there are many substantive things taught in the first year that are (a) indispensable and (b) not done better later in the law-school career. It's all more about inculturation into the enterprise, I think.

Posted by: Rick Garnett | Aug 24, 2007 2:45:30 PM

A couple of comments:

"While Erie questions don't come up that often in practice, the doctrine does lay an important foundation for understanding our federal system that a student likely won't get elsewhere."

I think the Erie issues arise every day of the week in practice. However, the resulting rule is so ingrained that no case cite is needed. Unless, of course, you don't know the ingrained rule.

"And shouldn't they know something about privilege doctrine so they don't inadvertently waive the privilege for their client? "

Isn't this covered in professional responsibility?

Posted by: Michael Risch | Aug 24, 2007 12:23:18 PM

At Hastings, Civ Pro is going from 6 to 4 next year -- and Contracts is going from 5 to 4. Although I don't teach Civ Pro (and I do teach Contracts), I felt perfectly comfortable expressing the view to my colleagues (one they rejected, mind you) that removing jurisdiction and Erie from the course struck me as the wrong way to go. Not only because my 4 unit class at Yale was all jurisdiction and Erie -- but because I continue to believe that the material is much more intellectually engaging than pleadings. More than that, it is foundational for many more courses than the other material is. For those who want purely litigation-oriented coursework, they can apprentice or take upper-level courses. But no one should graduate law school without understanding Erie and jurisdiction. Of course, that's just my opinion and we left it to the Civ Pro faculty to decide for themselves what they should cover (though I think we asked them to agree with each other). While I'm all for faculty autonomy, I did find it odd that non-Civ Pro faculty were generally ignored in their opinions about what students should be exposed to in the first year.

Posted by: Ethan Leib | Aug 24, 2007 11:42:33 AM

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