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Thursday, August 23, 2007

Big Changes in Civil Procedure: Part I

Two big things are happening in the civil procedure teaching world right now: the restyled rules and the shrinking civil procedure course. There has been a very good discussion on the civpro listserv about these issues in the last couple of days and I think the issues are worth sharing with the wider community.  In this post, I’ll concentrate on the new rules.

The new “restyled” Federal Rules of Civil Procedure will almost certainly be coming into effect December 1. For those of you that don’t follow the FRCP, nearly every rule has been rewritten for clarity and style. The changes are supposed to be merely stylistic, but of course there is a debate about whether this is in fact the case. Edward Hartnett has written a nice essay arguing meaning has been changed by the style revisions and advocating that the changes be rejected.  Personally, I think that the new rules are easier to grasp and make nice use of bullet points (seriously, look at the rules and you'll see what I mean).   

The question for teaching the subject is how to teach the rules now that they are in flux.  It is pretty rare that an entire subject matter changes (only Bankruptcy comes to mind a course that has experienced such wholesale change in the recent past).  Lawyers and judges, intimately familiar with the old rules and about to begin interpreting the restyled rules, are going to use the old rules and the interpretations that have grown around them to interpret the new rules. They must, since the new rules specifically state that they were not meant to change the meaning of the old rules. Or is this point also debatable? The new rules will have superseded the old rules, after all.  In any event, this issue militates in favor of teaching both the old and the restyled, side by side, at least while the interpretation of the restyled rules is in flux. Just as the ancient forms of pleading used to be taught in civ pro and have slowly been edged out.  If the point of the restyling was to simplify matters, it is clear it hasn’t done that – at least for law professors and students. 

On the plus side, as an astute professor wrote on the civpro listserv yesterday, the interaction between the rules offers a great opportunity to show students interested only in “learning the rules” that there is a lot more to law school than that. For me as a teacher, that is the real benefit of restyling.    I've found that one of the main tasks of teaching civil procedure has been to communicate to my students that skills (close reading, argumentation, reasoning, etc.) and basic background knowledge (values, history, theories of interpretation, types of arguments)  is much more important than the ability to memorize a set of rules.   Initially students often prefer a course where there is a "right answer" that they can simply learn, and they find it frustrating that it is not the answer that matters but the process that got you there.  I'm looking forward to have a concrete illustration of this point in the restyling process to use in my teaching.

You can download the restyled rules here or look at any FRCP supplement published in 2007, both sets should be in there.

Posted by Alexandra Lahav on August 23, 2007 at 11:31 AM | Permalink


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I understood the differences; just pointing out an analogy that might be useful.

Posted by: Ethan Leib | Aug 23, 2007 10:25:31 PM

Ethan, the difference here is that the entire set of rules has changed. In an ordinary year, you'll have a few rules tweaked. Once in a while you'll have a major revision to a rule that's worth discussing, the revisions of Rule 11 in 1993 or the new E-Discovery rules, for example. But this is the first time since the Rules were adopted that there has been a wholesale attempt to rationalize the language. So civil procedure professors must teach the new rules because we are teaching the rules of a uniform federal system. Now if we taught state civ pro, that might be a different story.

Posted by: Alexandra Lahav | Aug 23, 2007 8:51:00 PM

Interesting post. Do you have a link to the new rules? I haven't seen them (but then I don't do any civil law).

Posted by: Orin Kerr | Aug 23, 2007 6:23:53 PM

Contracts professors have been dealing with this problem for some time, since the UCC seems constantly under revision and constantly staying th the same. Although some of the broadest changes proposed to Art II don't seem to be getting much traction, things are changing in Art I and casebooks aren't updated often enough to reflect the changes. It makes life a bit difficult so I just issue disclaimers -- just as I always have to say that the actual law in the jurisdiction in which you practice may differ (on moral consideration, cohabitation contracts, prenups, parol evidence, etc.).

Posted by: Ethan Leib | Aug 23, 2007 12:25:42 PM

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