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Tuesday, April 10, 2012

Advanced Civil Procedure: Content?

When Civ Pro profs get together to talk shop, conversation inevitably turns to the pedagogical horror of the four-hour basic course (as opposed to the old six or seven hours). A related question is whether to offer a three-hour upper-level elective (whether called "Civ Pro II" or "Advanced Civ Pro" or "Complex Lit" or whatever) to fill-in the gaps and what to include in that class.

So a question for the Civ Pro types: What do/should/would you put in that course? And how would that affect what you include in the basic course. Does it still cover the  basics (Pleading, basic joinder, discovery, summary judgment, PJ, SMJ, Venue, Erie)? Or do you move some stuff around? Does it depend on what sort of enrollment you expect to get?

Please leave ideas in the Comments or e-mail me directly.

Posted by Howard Wasserman on April 10, 2012 at 09:48 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink


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I use the upper level advanced civil procedure course (which I call civil claim settlement laws) to cover what is almost never covered in the basic course-the laws guiding settlements. These laws are often also not covered elsewhere in the curriculum. The laws are not only procedural, but often involve torts, contracts, insurance, professional responsibility and other noncivil procedure areas.

Posted by: Jeff Parness | Apr 13, 2012 8:18:58 PM

Another option is to offer a seminar that focuses on selected advanced procedure topic. I've taught one a couple of times that looks at the policy issues underlying civil procedure (that the students aren't really prepared to deal with in the first year). One beauty of the course is that you can include both perennial issues and hot topics, so that they can begin to see why procedure matters. For example, when the advisory committee was considering the amendments to the discovery and summary judgment rules, I could assign my students readings on those proposals, including some of the comments filed with the Advisory Committee, and debate the merits of the proposals. I haven't taught it since 2009, but would be happy to share my syllabus if anyone would like to see it.

Posted by: Beth Thornburg | Apr 13, 2012 7:20:29 PM

To my mind Complex Litigation and Advanced Civil Procedure are two different courses. I see Complex Litigation as a course about how our system does and ought to deal with large scale litigation - advanced joinder, class actions, aggregate litigation, and maybe resolution of mass torts through bankruptcy. I think of Advanced Civil Procedure as a course where students can revisit and cover more in depth topics in pretrial practice (more discovery and e-discovery, privileges, various motions). A comparative perspective is useful, to respond to the commentator above, because it allows those students who might one day be participating in rule writing either on the state or federal level, to have that perspective. It is very mind-opening to see how other countries approach similar problems; I am always amazed at how a comparative perspective gives me new insight into our system. A comprative perspective can also be domestic: how do different states do it? I'd put this in the department of one of Holmes' best aphorisms: "Man's mind, once stretched by a new idea, never regains its original dimensions."

At many schools ADR and mediation are separate courses. I don't have a view of whether they ought to be folded in to Advanced Civil Procedure. Similarly, Conflicts is usually a stand alone course, but if its not taught at your school it might make sense to fold it in to Advanced Civil Procedure as well. But you won't be able to cover very much of these in 3 hours and there is a value to having a separate ADR and Conflicts courses.

I would urge people not to limit coverage of standard Civil Procedure topics in favor of an elective. It is very hard to acheive everything we want in the four hour course so it is tempting to do this, but many (most?) students will not take Advanced Civil Procedure (even if they end up being litigators!) or Federal Courts or Conflicts or Complex Litigation. Those students should have a basic, albeit thin, knowledge of how these aspects of the system work and how the whole system works together, which I think requires coverage of the "basics" Howard lists above.

Posted by: Alexandra Lahav | Apr 13, 2012 8:28:01 AM

From the perspective of a young litigator, I mostly agree with Glenn's proposed topics, but would remove the comparative stuff, and would add some very high level coverage of choice of law and conflicts.

Posted by: Former AE | Apr 10, 2012 1:32:25 PM

Great question Howard, and one our faculty has struggled with over the last few years.

This would be my list of things I don't get to in my 4 hour Civ Pro class that I would like to if I had another 3 hrs/week

The MDL.
Attorney's fees.
Default Judgments.
Appellate practice.
Comparative federal/state and international comparative civil procedure.
Intersystem preclusion.
In-depth use/development of discovery devices, including drafting interrogatories, etc.

I also teach about 6 hrs worth of class action in the 4-hr basic course , although I use about 1/2 of that to review topics covered elsewhere in the course (personal jurisdiction, venue, due process opportunity to be heard, vertical and horizontal choice of law). I would use Advanced Civ Pro to teach a lot more class action.

One key thing in planning an Advanced Civ Pro class is to make sure all students from all sections have relatively similar coverage in their 1L class. For the last few years at HLS, the Civ Pro faculty have had an RA "audit" our syllabi and create tables comparing what we teach. We find we have a pretty good consistency (about 80%) on topics covered, though a little less on depth of coverage, and use this exercise to shape our syllabi. You'll want to make sure you are at least at that level of consistency before planning an Advanced Civ Pro and have buy-in from the faculty who teach the basic course not to touch the topics you are handling, or you will get students with different backgrounds on the topics that can be challenging.
All that said, visitors (as much as we love them!) can be a fly in the ointment of this plan, since you often will have less consistency as to what they teach.

Posted by: I. Glenn Cohen | Apr 10, 2012 10:38:22 AM

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