Tuesday, October 2, 2007

Crash: "For now, Joseph Glannon is my hero."

Sometimes I have to look up during Civil Procedure to make sure I am in the right room.

Over the past couple of classes, it has transformed from a place where we answered questions by waxing philosophical about fundamental fairness, to a place where we flip furiously through a rule book, looking for a subsection to cite.  We have moved at a breakneck pace through the rules concerning pleadings, pre-trial motions and discovery.  These rules are certainly dense, but I actually enjoy attempting to figure out how they apply in various circumstances.

Although I like working with the rules more than I expected, I do have two Civ Pro related concerns.  First, while I think I understand the details we are focusing on right now, I am worried that my understanding is shallow because I have nothing more than the vaguest sense of how the whole system works together.  I know that, according to rule 12, a lack of personal jurisdiction can be waived while a subject-matter jurisdiction defense cannot. However, without any notion of what jurisdiction is, how it is determined, or what purpose it serves, it is difficult to do much beyond memorizing Rule 12.  And I am fairly confident memorization is not enough.

I am left feeling like we jumped from the forest to a leaf without stopping to even glance at the trees.  In a different class last week, the professors said, “Obviously you all know there is a federal system and a state system of courts. But do really know that? Have you learned in Civil Procedure what that really means?” We all looked around and realized that, after a month of classes, most of us had no better answer than the one we came in with.

I am sure the simple response to my concern is that professors have to begin teaching somewhere. Sure, for now it seems things would have been so much clearer if we had started with jurisdiction, but perhaps, if we had, I would now be wondering how I could possibly figure out to which court my client should plead if I didn’t even know what it meant to plead. I certainly don’t mean to suggest that I know better than my professor where he should have begun his course.   However, I do wish that at the beginning of the semester, or even over the summer, there had been some reading assigned that explained enough of the big picture to give me a framework from which to understand the coming details.  Even better would have been an introductory lecture, though I understand the difficulty of fitting it into the syllabus.  As it stands now, I feel like I am going to have go back and “really learn” this part of the class once I have at least a basic understanding of parts of the course yet to come.  Perhaps this is natural, but I would feel better about it if my professor were to directly acknowledge the situation, and perhaps provide a suggestion for how to best address it.

My second concern is that, despite my mastery of their details, I have little to no idea what the Federal Rules of Civil Procedure are.  In thinking about how these details relate to larger systematic notions of fairness, I am left wondering where these rules came from, what makes them legitimate, what governed our procedural system before these rules, how they can be amended, and what their general scope of coverage is.  Civ Pro has not completely lost its theoretical focus; we are asked to think about whether we think provisions of individual rule are fair or wise.  However, I am having trouble answering these questions without understanding the framework of either the procedural system or the rules.  A 2L told me Sibbach v. Wison, a case we will read in a couple of weeks, may shed some light on the difficulties I am having. For now, I am trying to hold back these big pictures concerns, while still moving beyond mere memorization.  I trust that it will all come together and make sense. For now, Joseph Glannon is my hero.  --Crash


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As a Civ Pro teacher, I'm enjoying and learning from Crash's comments. I try to tell my students exactly what Crash is telling himself/herself: it will come together, and it is indeed difficult to start anywhere in the course without knowing everything else!

But Crash's plea for the big picture is what moved me to write: Jay Tidmarsh & I have just published (with Aspen) a short book called "Essentials of Civil Procedure" which tries to give students exactly that picture. The first chapter is an overview of procedural design questions and a historical account (where did the Rules come from and what did we have before?), and the second chapter focuses on the adversarial system especially in the pre-trial phase. Crash, if you decide to use it, I'd love to know what you think. (You can find my e-mail on the Vanderbilt Law School web site.)

Posted by: Suzanna Sherry | Oct 2, 2007 12:18:28 PM

I think what you are feeling is normal. As Suzanna says, some of it will come together, and you will eventually understand how the leaves fit with the trees that fit in the forest. (Unfortunately, that often happens during your first summer job.) But, in my opinion, there are two other factors at play, and there's not much you can do about them.

The first is that there is a lot in civil procedure that isn't well settled or dealt with by the courts in a unified way. I really liked when you said, "[W]ithout any notion of what jurisdiction is, how it is determined, or what purpose it serves, it is difficult to do much beyond memorizing Rule 12." In all honesty, many judges have gone their merry way making rulings on matters related to jurisdiction without thinking deeply about what it is, how it is determined, or what purpose it serves. Just recently, the Supreme Court itself expressed a mea culpa for itsown careless and confusing use of the term "jurisdiction." Suffice it to say that some of the issues you are grappling with are issues that even judges are trying to resolve.

The second is that it sounds like you have a one semester civil procedure course. Much has been written about the incredible shrinking civil procedure course. But my guess is that the whirlwind that are the Rules for you right now feel like they do because they are being crammed into a truncated syllabus. You may just have to take an advanced civil procedure course or federal courts to get the satisfaction you are missing.

Posted by: Scott Dodson | Oct 2, 2007 6:48:15 PM

Joseph Glannon is my hero as well. When I took Civ Pro in law school, let's just say that the classroom component left something wanting. I learned much more from the Examples & Explanations book than I did from the class itself.

Now, teaching Civ Pro for the first time, I find myself referencing the E & E book to see how to teach the class. While I don't use the exact hypos from the book, I model a lot of my hypos from them. While I don't want to burden my students with readings from both the casebook and E & E, I think that in the future, I might assign selected sections/problems from the book.

Posted by: Colin Miller | Oct 3, 2007 5:20:17 PM

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