Tuesday, October 2, 2007
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