Spotlight on Sections: Civil Procedure
By Barbra Elenbaas
The Section on Civil Procedure promotes the communication of ideas, interests and activities among members of the section and makes recommendations on matters concerning civil procedure, including pleading, practice, jurisdiction, judgments, and federal courts.
Simona Grossi, Loyola Law School, Los Angeles, Chair
What can you tell us about the membership of the Section on Civil Procedure?
Ira Steven Nathenson, St. Thomas University School of Law, Chair-elect
The membership of the Section on Civil Procedure includes a broad spectrum of proceduralists from a wide variety of schools. Consistent with that membership profile, membership on the Executive Committee is equally eclectic, with new members rotating in on an annual basis. Our current Executive Committee is large, with eight members.
We have a collegial group of folks who are active in our section, and our prime method of communication is through the “Civ Pro” listserv—it’s a big section and the list itself is full of people talking about teaching issues, scholarship, developments in law and policy, and recent important cases. One of the most wonderful things about it is the pleasant, collegial tone people have whether you’re junior or senior. People are always willing to help out, pipe up, and lend a hand.
How do your section members interact and collaborate outside of the annual meeting?
We are very participatory. There are discussions going on every day on the listserv, about teaching, scholarship, and sometimes practice. A discussion could be initiated by someone who is seeking advice on teaching, and anyone with an idea jumps in to help.
We do not typically use the list to market ourselves, our scholarship, or our own casebooks. We just use it to support each other.
There’s an unspoken norm against what we call “shameless self-promotion.” People are hesitant to bring up their own work unless it’s directly pertinent to a question that someone is already asking. As legal scholars, we have other venues through which to promote our scholarship.
In addition to scholarship and helping each other with teaching, our members are very active in trying to make better procedural law. The current rules drafting and rules amendment process seems (in my opinion) to be dominated by the defense bar and by corporate interests. You’ll see people on our listserv, for example, circulating sign-on letters that will be sent to the advisory committee or draft amicus briefs for comments and signatures.
: In terms of other interactions: there is a University of Pennsylvania conference on class actions in November and another one at New York University in December. There seems to be a lot of interest right now in class actions. Since conferences are a great forum for discussion, they’re attracting good scholars, and I think we can be confident they’ll generate important ideas for reform.
What are the important conversations happening right now in legal education regarding civil procedure?
: We follow the U.S. Supreme Court, which started its term in October. As it grants review in cases or releases new opinions, it catalyzes our scholarship but also helps with our teaching—I love to see what other people have to say about a particular case. Other people will often see a new opinion differently than I do and that gets me rethinking how I view the law.
: There are two currently pending cases before the Supreme Court that are generating debate. One is dealing with the pleading standard, and the other is dealing with pleading and jurisdictional standard under the Foreign Sovereign Immunities Act. I would say that the pleading standard continues to be a hot topic.
The rules regarding pleading are the rules that govern gatekeeping to a system of civil justice. If you make it too hard to plead and to stay in the court, then you prevent people from getting discovery and redress for a possible wrongful injury that they have suffered. In recent years, the rules of pleading have tilted strongly toward narrowing those gates and making it harder to get through those doors and into the land of discovery. It’s a huge topic that permeates a lot of our concerns. The broader issues of procedural justice are affected greatly by the Supreme Court’s recent approaches to pleading. I find them very troubling, as do many of our colleagues.
Along those lines, another topic of debate is the frontloading trend that has developed at the lower courts as well as the Supreme Court level. Essentially, the recent trend is to frontload the merits of the case to the outset of litigation. This trend is not reconcilable with the vision of the drafters of the Federal Rules of Civil Procedure in 1938. The procedural pre-conditions of the action to be satisfied are now more formal, more technical, harder to satisfy, and the analysis required at the pleading stage is something you would expect to meet after discovery. These problems are evident also in the class actions context.
It’s an important topic. And not just for scholars, but also for the public.
Also, the new discovery rule amended last December provides a proportionality requirement. Basically, discovery should be proportional to the needs of the case and the amount at stake, and several other factors. This has generated discussion among the members of our section. Some of us argue that Rule 26(b) is now largely redundant with respect to Rule 1, and we wonder whether the amendment will generate new litigation on the scope and meaning of proportionality.
It seems like the Supreme Court, in its decisions as well as the rulemaking process, which ultimately goes through the Supreme Court, is setting up more and more roadblocks to make it easier to get rid of cases early. As Simona pointed out, they do this by frontloading the merits of the case at the beginning of the case. Also, to reduce the cost of discovery or limit discovery so that cases might settle earlier and quicker. Again, that’s very troubling.
How can civil procedure teachers stay up to date as your subject area becomes more complex? How do you respond to that in your teaching?
Personally, I continually think about teaching and how to approach the subject. Every year, I change my approach slightly to meet the new complexities, reforms, litigation, debate, and so on.
The challenge is that you’re teaching first-year students. You don’t want to overwhelm them. Civil procedure is a topic that seems extremely far from them when they enter law school. They’ve heard about torts somehow, they’ve heard about contracts, but civil procedure? Jurisdiction, venue, service of process? What is that? So you need to find the right balance between the evolving complexities and the need to communicate specific central ideas. That’s challenging.
Civil procedure is a more challenging course to teach than torts or contracts or property, and the reason is that it’s different. Think of a tort like a course in recipes: one day you learn the recipe for battery, the next day you learn the recipe for negligence. You’re learning the elements of various causes of action. Students can identify and connect with that because everyone has a basic understanding of what battery or negligence might be even if they’ve never studied it.
If a tort claim is like a recipe, then civil procedure is the language in which all the recipes are written, whether it’s a recipe for contracts, torts, property, whatever. If you were a professor teaching French, you wouldn’t expect your students to show up fluent on the first day of class. Equally so, experienced civil procedure teachers know their students are not going to be able to speak civil procedure in the first week or two.
Instead, they learn bits and pieces. We start tying it all together so that eventually students start to see the big picture. In fact, each year I do a comprehensive review of personal jurisdiction and I call it “Personal Jurisdiction Big Picture Day.” Students often comment that they don’t see how it fits together until it’s laid out for them as a comprehensive whole and they can see the parts fitting together.
: You cannot teach civil procedure topic by topic, as the subject articulates itself and fully expands itself through litigation from the beginning to the very end. The problem often is—and this doesn’t get addressed as much as it should—that the reforms as well as the scholarship address each topic or view separately. Some recent reform movements—regarding Rules 23 and 26, for example—seem to be proceeding by treating the rules in question as separate from the rest. This is troublesome.
As teachers, we have to convey the idea that civil procedure is not about a rule and then another rule, or a topic and then another topic. As scholars, we have to do the same. We need to convey a holistic vision. Send the message that to be effective, a reform itself, as well as scholarship, should have the unified, holistic vision.
As scholars, one of our responsibilities is to be advocates for a better system of procedure. When we have Supreme Court justices who don’t bother reading most legal scholarship because they find it to be useless, as scholars, we need to ask ourselves how we can produce scholarship that solves not just a particular isolated problem, but impacts the broader system of procedure with all the various values that underlie procedural justice.
What changes to law school curricula have you seen as a direct or indirect result of the work of this section? How has the study of civil procedure changed since you’ve been teaching it?
There are several currents going in legal education that affect our jobs as civil procedure teachers.
First, civil procedure is now on the Multistate Bar Exam. Now we have to be cognizant of how our teaching is going to impact students’ performance on the bar, which becomes all the more important considering that scores in many states seem to be plummeting and there is controversy regarding the MBE itself.
Along with that, law schools are now grappling with the ABA requirements for posting outcomes and for providing formative assessment. These are things that legal educators and scholars have been writing about quite a bit in the last couple of years. It seems to me, since civil procedure is so different from other courses, anything our section can do to work together to come up with better outcomes and assessment and teach our students in an era where civil procedure is finally on the bar exam, that can only be a good thing.
On the issue of curricular reform, we think that procedure has been on the losing side of the battle for a number of years, with unit value shrinking from six to five to four units at many law schools. Thus, at a time when the law of procedure has become increasingly complex, the coverage of procedure has sometimes become more simplified and less sophisticated. From the discussions I’ve had with colleagues who are enthusiastic and passionate about the subject, we feel that the four-unit formula is limiting.
My opinion on four credit courses is wait and see. I agree that it’s insufficient if that’s all that’s taught. What we’re doing at my school to try to make sure students are getting everything they need is adding mandatory second and third year classes that fill in some of the gaps and repeat materials they learned in the first year.
The idea underlying this is that although a six-credit course has great benefits in terms of comprehensive coverage, the danger with a first-year course is that students will often have forgotten much of what they learned by the time they take the bar exam. I’m hopeful that having four credits will allow us to focus more on the basics of civil procedure and learning the legal process and analysis, then the students will get reinforcement in the second and third year.
In addition, we’ve been making a concerted effort as a faculty to come up with gap filler courses that would provide coverage on something that might not be covered in the first year, such as a course in complex litigation that covers class actions.
This should make us reflect on the balance between coverage and essentials. You cannot possibly cover everything. The more you go into details of litigation, the more you run the risk of them forgetting the essentials. It is a problem, especially since Civil Procedure is now tested on the bar exam. But Civil Procedure is, beyond the bar, an important subject for their career after law school. Yet, it is disappearing. We have to find a way to cover some of the very important federal courts doctrines—which are indeed civil procedure doctrines—one way or another.
Procedure itself has challenges not just because of the nature of the material but because it’s an area of law that’s changing all the time. There are additional challenges that have required innovation and improvements, which include the changing nature of JD students. Much has been written on the challenges of teaching millennials, who tend to be technologically savvy but may not have the critical thinking or reading development that might have been the case with students from 10 years ago. It’s incumbent upon us as educators to come up with ways of reaching and helping these students.
I’ve begun using more active learning methods. Speaking for myself, I tend to do a lot more teaching than I did 10 years ago, and it’s become less Socratic. I try to keep things rigorous, but in a friendly way that gets students to realize making a mistake is not a shortcoming but rather a learning opportunity. There are other methods as well, such as flipping the classroom: using online videos and materials for students to self-teach and then bringing that into the classroom.
I have established a website—nathenson.org—with hundreds of pages of problem sets, handouts, charts and tables, and study questions. It also features flow charts done with the innovative “Coggle” flowcharting platform (available at http://coggle.it), which allows users to zoom in and out of colorful flowcharts on complex subjects such as the Erie Doctrine and personal jurisdiction. In addition, I have a YouTube channel with over sixty Civil Procedure videos, including reviews, selected classes on key topics, and a number of “Khan Academy”-style videos where I use a tablet and stylus to mark up statutes and rules, diagram joinder scenarios, and analyze hypotheticals. Last time I checked, I had over 900,000 minutes of videos watched on my active and legacy YouTube channels.
I know there are folks at other schools doing the same things. Perhaps one of the things we can do as a section is continue our efforts to develop shared resources for teachers and students. We do maintain an exam bank within our section, but perhaps there are ways to expand, even into things that are open to students at large to provide go-to places for learning civil procedure. Since legal education is changing so much and we as civil procedure teachers have so many additional, unique challenges, anything we can do to help each other can only be a good thing.
How does your section support the scholarship of your members?
We do a call for papers. A paper will be selected each year for presentation at the Annual Meeting. Recognition of scholarship is done through other forums. Sometimes there are workshops that select papers for presentation, which is a form of recognition. There is, for instance, the very prestigious Yale/Stanford/Harvard Junior Faculty Forum that recognizes the scholarship of people in various disciplines.
I think one of the strengths of our section is its total lack of focus on status. Anybody can speak up in the listserv and we’ll all be happy and enthusiastic to help. We’re here as a resource for each other; that’s one of the main functions AALS serves. We’re a hub. I’d be concerned that if we start naming the best scholars or the best paper, that politics and status would creep into the functioning of the group in a way that could adversely impact the good things about the group, which is the collegiality and willingness of anyone to participate freely.
It’s very democratic.
What programming do you have in the works for the 2017 AALS Annual Meeting?
Our session is on “The Roberts Court and the Federal Rules of Civil Procedure.” We selected this topic because it’s a hot topic of debate—the way the Supreme Court has altered the rules by way of interpretation. The discussion will touch on a list of subtopics including interpretation, recurrent doctrinal themes, amendments to the rules, membership on the advisory committee, historical perspective on the rulemaking process, and pending decisions and future outlook. The selection of the panelists was determined by those topics. The speakers are very diverse and we’re expecting a lively debate.
We also have our call for papers on the same theme, and we’re planning—because the panel already has six speakers and me as the moderator—to invite the selected author or authors to present the paper at our breakfast session. That will be a further opportunity to discuss the topic and subtopics.
What is your vision for the section, this year and in the years to come? What new initiatives, project-based or ongoing, would you like to see as part of the section now or in the future?
My sense is that there hasn’t been enough debate on the theories that underlie the specific issues and hot topics that we’ve been talking about. The theory of pleading, of class action, of discovery. The scholarship addressing these topics often does not make an effort to develop the underlying theories. My hope is that sometimes in the near future the AALS meeting will address the topic of the missing theories of civil procedure. My hope is that there will be some space to discuss these issues next year because it is very important.
We do lack any big-picture consideration of why the law is the way it is. I tell my students that you really can’t understand the law until you understand why the law is the way it is. Now, it seems like a lot of laws are being changed with, perhaps, some sort of political or economic agenda but without any consideration as to how it affects the other rules or the underlying theoretical foundation of why that rule even exists in the first place. This is a topic well worth considering in detail.
My personal starting point for thinking about the future is often how can we be better educators. What are the challenges facing us as civil procedure teachers in an era when we’re on the bar exam, with limited resources, and new kinds of students?
Speaking more broadly about the legacy of the section, I wonder if there’s something we can build as a section that can be self-sustaining–whether it be expanded online resources or something that builds outside the section such as blogs and websites that benefit teachers and our students by providing useful information and learning tools.
It could be aimed toward the broader legal community, as well. I’m reminded of how many judges go to training sessions on how to do the rules of procedure, but you don’t see judges interacting with procedural scholars. Perhaps this is optimistic, but it would be wonderful to have something recognized by the outside world as a source or alternative view of procedure that stands up to the various stakeholders out there who aggressively pursue their own agendas.
These are lofty goals, but interesting ideas. Our decision-making is a collaborative, deliberative process within our section, so the program for next year’s meeting is very much yet to be determined. Getting from here to there is a big journey.
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