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Saturday, April 11, 2009

Forgetting Erie

When I was in law school in the early/mid-1990s, there were two civ pro professors teaching sections of a one-semester, four-hour course. And it was legend that one of them always taught Erie and the other did not. In fact, the failure of the latter to do so was a frequent topic for the annual student revue. A typical skit:

Student: Professor, I would like to meet with you before I go home for break. "Professor": Oh, where is home? Student: Erie, Pennsylvania. "Professor": Erie? Never heard of it!

I am becoming that professor (fortunately, we have no student revue that could lampoon me for it--or for anything else). For the second straight time teaching a one-semester, four-hour civ pro class at FIU (not counting my year at SLU, where civ pro is a five-hour course), I will not get to Erie. And this is disappointing, both because I consider it important and it is probably my favorite subject (along with subject matter jurisdiction) in the class. As it stands, I have roughly 10 hours of class time left in which to do a quick subject-matter jurisdiction review, then cover personal jurisdiction and venue.

I honestly have no idea how to remedy this. I am fairly sure that I have cut everything as far down as possible, in terms of time and coverage. We spent only three classes/four hours on Discovery and one class on Rule 11. We spent a lot of time on pleading standards (about 4 classes/5 hours); but that much time is unavoidable as we try to figure out what to do about Twombly and the looming Iqbal and as I have tried to respond to demands for more practical discussions by incorporating sample problems into class discussions. Subject matter jurisdiction probably has taken longer than it should, but again, we need to spend time making heads or tails out of an incomprehensible recent supplemental jurisdiction decision.

Perhaps I am making the wrong choices in the depth v. breadth debate. But it seems to me that coverage of one topic must be sufficient to make it coherent and to give students a sufficient base of knowledge. You can't simply refer to joinder in explaining pleading--you also have to spend some time with the basic joinder rules; you can't teach supplemental jurisdiction without teaching the exception in § 1367(b), which is confusing. Actually, the one time I tried to gloss over joinder, I kept getting questions from students who, armed with Glannon's or some other study guide, wanted to know more than I had planned to cover.

My conclusion is I need five hours (or at least 4 1/2 hours) of civ pro. That pretty clearly is not going to happen, both because of the legal-academic trends and because prawfs in every other 1L subject could tick-off a list similar to mine. So I continue searching for some other solution.

Posted by Howard Wasserman on April 11, 2009 at 08:02 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink


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I would think teaching Erie is more important than teaching venue or discovery. In practice, discovery isn't as much about the rules as it is about the logistics of producing and reviewing large numbers of documents; and venue can be picked up when it arises. Without a framework for thinking through Erie problems, however, it's difficult to address those issues in practice.

Posted by: Ron | Apr 14, 2009 1:40:31 PM

Speaking of problems encountered in the wild. Our dean of libraries at Michigan State claims to have actually encountered a perpetuities problem in practice. So maybe it is more important than Erie. (Well, no it isn't. But Chuck's story is loads of fun.)

Posted by: Lumen Mulligan | Apr 13, 2009 2:16:22 PM

Hi Howard,
I wouldn't worry too much about not addressing Erie, if (I think the if important) there is an upper-division course that will cover the topic.

[I am now going to spout some stats that won't be entirely accurate, but are close and make the point accurately.]

At most law schools, only 25-30% of the students go on to be civil litigators. Thus, the vast majority of your 1L students will have little cause to grapple with an Erie problem in the wild. Further, only 2-3% of civil litigation occurs in federal court. So it is most likely that your students will not be litigators, and of those who are, it is most likely they will not find themselves in federal court.

Given this reality, it seems a better use of time in a course to cover areas that have a greater chance of effecting your students' practices. (Like the best evidence rule).

But, of course, Erie is important. It may, for example, impact which court one files in (what, gasp, what ... I thought that wasn't supposed to happen ...). And it is otherwise an important part of federal practice. Thus its prominent inclusion in an upper-division course, coupled with clear academic counseling to the future litigators, can cure the problem of a short civ. pro. class.

I, for one, think Erie should be covered in choice of law courses. I like the comparing of vertical and horizontal choice of law questions. Or, one might offer a course on Jurisdiction (which is the U. of Michigan model) and skip jurisdiction/Erie altogether in Civ. Pro.

So, perhaps, less civ pro in the first year could lead to a richer curriculum in the upper division with students all interested in the subject. I think this might be an even better scenario than the traditional 6-hour class.

That said, at Michigan State we have the traditional 6-hour model.

Posted by: Lumen Mulligan | Apr 13, 2009 2:13:49 PM

Here at John Marshall, it is a 2-semester, six-hour class.

Posted by: Colin Miller | Apr 13, 2009 9:37:12 AM

We currently do a one semester, 5-credit course, one more credit than our other core courses. Unfortunately, that fact did not stop my esteemed professor from constantly bemoaning the fact that Civ Pro was now only one semester.

Posted by: Robert | Apr 12, 2009 5:08:46 PM

The trend in legal education since the early '90s has been to make all core classes one-semester of three or four hours. Civ pro profs often have seen themselves as something of a citadel against this--every year or so, the prof listserv lights up with another school debating whether to reduce civ pro from 6 or 5 to 4. My experience at SLU last year convinced me that 5 is the right amount.

Posted by: Howard Wasserman | Apr 12, 2009 2:47:58 PM

Do most law schools offer civ pro as a one-semester, four-credit class? I took it as a two-semester, six-hour class, and I think that's clearly advisable for civ pro. It seems to me that this is pretty clearly preferable, and that the other standard 1L subjects (e.g. property, contracts, torts, crim) could not make a similar case.

Posted by: joe. | Apr 12, 2009 2:43:23 PM

I think I could do a bare-bones Erie of Swift, Erie, Hanna, and Gasperini--it would take 3-3 1/2 days. I often defend Gasperini as a teaching case because it illustrates well the competing paths of the analysis depending on whether one finds the rule on point or not.

Posted by: Howard Wasserman | Apr 12, 2009 12:19:34 PM

I've had to cut substantially too, and wish I had 5 or 6 hours. This year we are not doing preclusion or forum non conveniens. I've never done any trial or appeal issues. And my goal with most of the remaining topics is not so much to have students remember the exact outcomes years later when they graduate (although that would be wonderful), but just to instill within them an alarm bell that goes off when they see a particular issue. "Hey, the other side is proposing using a state rule of evidence in a federal proceeding. Hmmmm. That sounds familiar. Better look it up."

So I tend not to get all the way up to how current doctrine is shaking out on any of the subjects in the course -- e.g., I don't do Iqbal, and I don't do any supplemental jurisdiction cases after Exxon. There's definitely downsides to this approach -- I have this nagging feeling that personal jurisdiction would be a lot easier if we focused on the tests that the circuit courts actually use, as opposed to the vague pronouncements from the Supreme Court. (Maybe I'll try that someday, as an experiment.)

So I do do Erie, despite my sense that it's maybe not as critically important as others believe, but I cut it off at Hanna. I'm planning on two days for it, but it's right at the end, unfortunately, so we'll see. Gasperini is in my textbook, but I don't see the point.

Posted by: Bruce Boyden | Apr 12, 2009 11:54:15 AM

My law school is like this too. One of our Civ Pro professors doesn't teach Erie. It's always really embarassing for students from that section when professors in other classes raise Erie issues, and the students have no idea what's going on. Professors in upper level classes assume that Erie is taught in our 4 hour Civ Pro class. My professor had us read Swift v. Tyson and Erie, but she coverd in lecture some of Erie's progeny, like Mason v. American Emory Wheel Works, Guarantee Trust Company v. York, Hanna v. Plumer, and Bird v. Blue Ridge. The whole thing took about a day and half of class, and I have always been very thankful that she covered it because Erie issues have continued to come up in my 2L classes.

Posted by: stephanie | Apr 11, 2009 10:25:13 PM


That is more or less what I do with the Best Evidence Rule. Unfortunately, I think Erie is, relatively speaking, a bit more important doctrinally than the RAP (although I am sure some property professors out there will disagree with me on this).

Robert: The last time I taught civ pro at FIU, I did what your girlfriend's teacher did--one class, talking about Erie itself and the use of state substantive law in federal courts, but not going anywhere near the richer material on competing procedural rules.

Posted by: Howard Wasserman | Apr 11, 2009 2:41:11 PM

You could do what my property professor did when he didn't want to or didn't have time to cover the Rule against Perpetuties, which was to give a five minutes speech that basically said: "Look, we're not going to cover this, but it's something people expect you to have learned in 1L Property, so now you can say you did. Here's what it is. You'll learn the details in Bar Review."

Posted by: anon | Apr 11, 2009 1:25:55 PM

My girlfriend's section spent one class (2 hours) on Erie. My section spent 2 weeks on Erie.(The "Erie Doctrine"generally, not just Erie v. Tompkins) Interesting to see how different professors treat different subjects.

Posted by: Robert | Apr 11, 2009 9:52:56 AM

Why not assign a brief, out-of-class writing assignment designed to focus students on the aspects of Erie that you deem important? Although they would be learning about Erie on their own, at least they would be learning about it -- which would mitigate any confusion that might arise in subsequent courses like Federal Courts and Conflict of Laws.

Posted by: 3L | Apr 11, 2009 9:13:42 AM

My CivPro class spent a fair amount of time on Erie but skipped venue. That probably wouldn't solve your problem, though, because Erie I think takes a good bit of time to do right (maybe 3-4 hours?)

We'll see if I live to regret that. For my money, the important thing about Erie wasn't so much the doctrine--Erie questions are usually easy, though the ones that are hard are really hard--but rather that the Erie/Swift changeover is a concrete way to get a sense of how people used to see the law (Holmes' "brooding omnipresence" and all). The view of law as politics through other means has become so widespread that, otherwise, it's difficult to recapture that old view. On the other hand, my CivPro prof was a historian, so that probably had something to do with the focus.

Posted by: 1L | Apr 11, 2009 8:17:21 AM

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