My Civil Procedure Syllabus: Hypothetical Problems Included

Like so many other law profs, I’m amidst drafting my syllabus for the fall. (It’s an amazing thing to be done with a draft of Hate 3.0: A Civil Rights Agenda to Combat Discriminatory Online Harassment (forthcoming HUP) and a substantive edit of “The Right to Quantitative Privacy” with my amazing colleague David Gray–now I can turn to my students!) For my civil procedure students, my syllabus is full of tips/questions/hypos, so that they don’t have to turn to commercial outlines (or so I hope). I just wrote a new hypo for subject matter jurisdiction, thanks to terrific guest blogger and civ pro scholar Howard Wasserman whose essay “A Jurisdictional Perspective on New York Times v. Sullivan” served as an inspiration.

Here is the newly drafted hypo for all of my civ pro teacher colleagues. Suggestions for improving it, so welcome!

In-class hypo (or for study group)[1]

The year is 1965. In Southern towns and cities, civil rights protestors are being beaten and intimidated by local police and private citizens. Montgomery, Alabama is no exception. To draw the public’s attention to the mistreatment of civil rights protestors, advocates put an advertisement in the New York Times highlighting the abuse in Montgomery, Alabama and in other Southern cities. Civil rights activists and four Alabama activists signed the ad, which appears here.

  A Montgomery, Alabama police official sued the ad’s publisher The New York Times and the four Alabama residents for defamation, alleging that the ad falsely suggested that he was responsible for the physical attacks on civil rights protestors. The Alabama plaintiff brought the case in state court, where with his luck it was assigned to a judge known to be a member of the Ku Klux Klan. The New York Times would like to remove the case to federal court, fearing that the state court judge would be hostile to the Northern newspaper agitating for civil rights. An important fact to consider too is that a year before the plaintiff filed the case, the Supreme Court found that in defamation claims involving public officials and alleged falsehoods about their public duties, the First Amendment requires that the plaintiff proves the defendant published the falsehoods with “actual malice,” that is, knowing they were false or reckless to their truth or falsity.

Let’s discuss whether the New York Times can remove the case to the federal court and whether it should be permitted to do so given the rationale underlying subject matter jurisdiction. What is the rationale behind diversity jurisdiction? How does it fit here? Would the constitution permit removal and what about Section 1332? What are other roadblocks to removal under diversity jurisdiction? What about federal question jurisdiction analysis? There is much to think about with the well-pleaded complaint rule and the Grable analysis.

[1] As a factual matter, I am riffing from the famous New York Times v. Sullivan case and borrowing the substantive findings about the First Amendment from the case; I take the idea for this hypo from Professor Howard Wasserman, “A Jurisdictional Perspective on New York Times v. Sullivan,” volume 107, Northwestern Law Review, page 901 (2013).

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13 Responses

  1. Scott Fruehwald says:

    This is exactly the kind of thing that all doctrinal professors should do to improve student learning. Education research has shown that students remember more and can manipulate material better when they apply their knowledge

  2. Lawrence Cunningham says:

    Re comment 1 Scott, this is exactly the generic comment you left on another recent post containing details about aspects of law school teaching. Well, almost exactly, as the comment, July 31, 2013, reads as follows:

    “This is exactly the kind of course that law professors should be teaching. Education research has demonstrated that students remember more and are better able to manipulate materials when they apply their knowledge in problem-solving exercises and experiential courses. All doctrinal courses should be like this.”

  3. Jimbino says:

    A grammar note:

    “…the First Amendment requires that the plaintiff proves the defendant published the falsehoods with “actual malice,” that is, knowing they were false or reckless to their truth or falsity.”

    should read

    “…the First Amendment requires that the plaintiff PROVE the defendant published the falsehoods with “actual malice”– that is, knowing they EITHER were false or reckless AS to their truth or falsity.”

    In order to observe proper use of the subjunctive mood in a dependent clause following “require,” proper parallelism and proper use of “reckless.”

    Furthermore, I believe you either “riff on” or “riff off,” as opposed to “riff from,” a melody.

  4. Jimbino says:

    Actually, to preserve the meaning, you need to write, “…knowing they EITHER were false or were reckless AS to their truth or falsity.”

  5. Danielle Citron says:

    Thanks so much for the edits, so helpful! And thanks for the feedback Larry and Scott. I try to do this for all of my classes and will keep at it. Perhaps there is a way for us at CoOp to crowdsource materials to help students/profs…

  6. Scott Fruehwald says:

    Yes Larry, you are right. I like to encourage professors who are making significant changes in their classes. I believe that Obama gave a large number of similar speeches to fight for health care reform. Is something wrong with this?

  7. Howard Wasserman says:

    Danielle: Thanks for the free publicity.

    A lot of professors do things like this, particularly in 1L classes. Part of the problem with many of the new buzzwords–practice-ready, skills, etc.–is that they assume that professors are still teaching the way Prof. Kingsfield did in 1970, so they just have to adopt these new ideas. This is already being done in many, many classrooms.

  8. Lawrence Cunningham says:

    Scott Fruehwald (6):

    Write the same comment as much as you wish.

    I just want readers to know that I previously noted that your comment(s) made something sound new and bold that isn’t. Law professors have been doing this kind of thing for a century. They enjoy academic freedom to experiment as these teachers are doing.

    Further, I do cringe at the concepts of “doctrinal professors” and “doctrinal courses” and especially that all such teachers and classes should all be taking identical approaches.

    [Not sure about the analogy to presidents repeating speeches on their policy agendas!]

  9. Scott Fruehwald says:

    To Larry and Howard,

    I never said that using problems was new. However, I think that problem solving-exercises are not used enough in law school classes.

    Also, I don’t think that all professors should be using the same techniques. There are many different ways to educate law students better, and students need to be exposed to a variety of techniques.

    I didn’t realize that “doctrinal” was politically incorrect. What term should I be using?

  10. Lawrence Cunningham says:



    On your last point about labels: when discussing pedagogy in law schools broadly, as your comment seems to, I guess I would vote to omit a modifier and use “professors” and “courses.”

    One reason I dislike “doctrinal professor” or “doctrinal course” is they are so descriptively wrong. For instance, when I teach contracts, I don’t consider myself a “doctrinal professor” or it a “doctrinal course.” In the class, and in the materials, there are certainly doctrines, but there are also theories, methods, perspectives, histories, philosophies, exercises, problems, debates, disputes, mediation, negotiations, stories, emotions, counseling, bargaining. . . . We teach law in its infinite dimensions.

    Another reason I don’t like the label is a hidden potential for political meaning that I have found troubling. “Doctrinal professor” or “doctrinal course” would not seem “politically incorrect” if intended as the antithesis of “theoretical” or “practical.” The capaciousness of contracts pedagogy answers the point in what appear to be apolitical terms.

    But if intended to contrast “clinical professors” and “clinical courses,” the political pops up, given ongoing and often-heated discussions about relative status and job security of various designations law schools have given to teaching staff. In discussions of this sort, the more congenial distinction, to me, is between clinical teaching and podium teaching. But even those probably stir up a hornet’s nest for some.

  11. Scott Fruehwald says:


    Thank you for clarifying your position on doctrinal professor and doctrinal course. I agree with most of what you said. However, doctrinal professor and doctrinal course are commonly used in our profession. Just do a google search of these terms. Finally, I hate the term podium professor. It gives me the image of someone standing stiffly behind a podium giving a lecture.

  12. Howard Wasserman says:

    On a substantive note: I don’t teach the Grable line of § 1331 cases (no time, so I shuffle it off to Fed Courts), but this does present a good hypo for Grable purposes. The other issue you may want to include is SCOTUS jurisdiction under § 1257 and how NYT may get a federal forum even if it remains in state court.

  13. Calvino says:

    Howard W.’s piece is thoughtful and lots of fun.

    But didn’t he build his hypo, at least in part, on the discussion of Sullivan in Frederic Bloom’s “Jurisdiction’s Noble Lie”?

    Credit where credit is due?