First Day of Civil Procedure


Today’s the first day of  Civil Procedure I at Temple. I like teaching the course: the material is complicated enough to make class time worthwhile; student expectations are very low and exceeding them is  a cinch; some deep problems of institutional design arise which offer rich material for good discussion.  Plus, it’s now on the Multistate Bar!  That said, I’ve some concerns about the course — you might call them existential, or (if you are disposed to be less charitable) “unduly repetitive.”

First, almost every civil procedure course taught to 1Ls in this country focuses on federal procedure.  I’ve argued before (using the image heading this post) that this is an odd choice. Why do the FRCP dominate over state rules? The best argument is that they prepare student for multi-jurisdictional practice. The second best argument is that many state procedural regimes ape federal law – a story of the latent triumph of the Swift regime that I might write about someday soon. But, honestly, I’ve a sneaking suspicion that most law professors teach federal procedure because they simply don’t know the current  state procedural practice at the school where they teach.  Note: practice, not rules — that is, it’s difficult to keep up with changes in the on-the-ground practice of procedural change in state court when you have another full-time job and aren’t regularly jousting in court. For example, in Philadelphia, there’s a Discovery Court.  That Court has some rules.  But those rules’ application varies so widely between judges, and changes yearly as judges rotate, that teaching the rules themselves would be insanity.  By contrast, the federal system is relatively uniform, transparent and stable.  A full-time law professor can teach the federal rules & federal cases and provide students a fair approximation of the lay of the land.  Thus, for all of the plausible reasons in the world, we teach procedural rules which are often irrelevant to the work of most graduates.

Second, most Civ Pro courses allocate time based on available case law. Hence: more days on personal jurisdiction, and fewer on discovery.  Again, this decision makes some pedagogical sense. If the first year is about learning how to read cases, jurisdiction cases certainly provide illustrative examples of doctrinal evolution. That’s true especially since the hard questions of internet jurisdiction are likely to remain largely unsettled. But how about the time spent on Erie? Though that case is iconic, I doubt that Erie issues come up very often in real cases.  It’s sort of like the Contract course’s focus on consideration and promissory estoppel instead of interpretation.

At the same time, the real billable output of procedural questions is often document review & consequent deposition practice.  Though many professors teach some variant of deposition practice as a part of a procedure course, none that I’m aware of require students to engage in the “skill” of document review of a large set of irrelevant results.  This may be changing: some schools are teaching students how to use technological solutions to review requests, though typically such experiences are divorced from the basic procedure course and instead segregated into a law & tech class. But it’s hard to imagine that you could actually shape a first year course around discovery.

Third, very few casebooks, and thus very few courses, spend significant time on the intersection of contract and procedure outside of the forum selection context.  Maybe that’s because there’s no there there.  Or maybe it’s for ideological reasons.  Regardless, it’s obviously true that civil cases are being eaten up by arbitral proceedings, whose largely-secret and evolving procedures are very difficult to study in the first year.

What’s the upshot? The course is called procedure, but it’s far more typically taught as a legal process course driven by due process concerns & the Matthews test. That’s not a terrible thing, though it does present a bit of truth-in-advertising concern, no?  Perhaps Law Schools should rename Civil Procedure as “Some Musings on the Constitutional Roots of Procedural Problems.”

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