My presentation will review methods of teaching civil procedure from a law-and-economics and rights-based perspective. We all try to teach a balance of doctrine, theory, and practice in the first year course. What I try to do is teach theory in a rigorous and systematic fashion. My method is inductive - I anchor theory in the cases and motivate student interest by developing the tools as needed to analyze opinions or address issues of current interest. Here is an outline of what my presentation will cover:

       I.    What I teach: At the most general level, the students learn the distinction between positive (predictive) and normative (evaluative) approaches. The positive tools include empirical studies, informal experience, and formal analysis. I focus mostly on formal analysis: e.g., basic rational choice theory, expected value, economic model of litigation, settlement model, attorney-client agency problems, and simple game theory (e.g., Nash equilibrium and the Prisoners' Dilemma game). The normative tools include economic and rights-based approaches. As for economics, we focus primarily (though not exclusively) on error cost analysis. We also work with outcome-oriented and process-oriented rights-based approaches (e.g., dignitary participation values, procedural justice literature, etc.)

       II.    How I teach it: - This will be the heart of my presentation. I develop the theoretical tools piece-by-piece through a close study of the rules and opinions in each unit (using my own materials and the Marcus, Redish, & Sherman casebook). The key is to probe hard for justifications and reconstruct missing steps in a court's reasoning. Thus, my approach is inductive, and also cumulative in the sense of building incrementally from topic to topic. An important aim is to anchor the theory in practice so students are motivated to learn by appreciating the practical as well as the intellectual value of the abstract material. To make this approach work, it is essential to sequence the topics properly. A major part of my presentation will involve explaining my sequencing choices. Just a few examples: I start with Goldberg v. Kelly and Mathews v. Eldridge (need for values; introduction to error cost analysis and the difference between economic and rights-based approaches), although I've done the same with the Fuentes line of cases. Then I do remedies (more on error costs and the economic/rights-based distinction); burdens, pleading, and Rule 11 (economic model of litigation; simple game theory; error costs); summary judgment (more of same); litigation costs/fees/Rule 68/ADR (economic model of filing and settlement), jurisdiction; Erie; discovery (Prisoners' Dilemma and information as a quasi-public good), preclusion, lawsuit structure - and so on. As we move through the topics, the students apply what they've already learned to new cases and problems.

       III.    Why it is important: - In class, I motivate student interest by emphasizing the value of these ideas for (1) making practical litigation decisions and giving advice to clients (e.g., whether to file; whether to settle and for how much); (2) crafting legal arguments to a court as an advocate, and (3) criticizing and improving procedural rules as a policymaker.