Thursday, October 15, 2009

Teaching Civil Procedure

Recently law professors have been taking a critical look at how we teach civil procedure - one of my core topics and relevant to this blog.  On Concurring Opinions, a discussion is going on between two civ pro professors about what we should teach in the civil procedure course.  Jon Siegel (GW) has a great post on what it means to teach civil procedure and what it means to teach law more generally, written in response to some disparaging comments in previous posts but certainly able to stand on its own.  Click this link to get there.

I agree with Jon about the overall project and think teaching students to memorize black letter law, however comfortable that may be for them (and relatively easy for us) is a mistake.  The first reason is that to do so would be an invitation to malpractice. The rules change (this year - Rule 56, the calculation of time, Iqbal, next year - who knows?), so you need to know how to read, analyze and interpret rules, not just what they are.  Furthermore, the rules are different in different jurisdictions (local rules anyone?) and litigators should be able to practice in state courts as well as federal.  But we can't teach to the particular forum where any one individual is going to practice.  Students need to know how to look up rules, what sources to use in interpreting them, to develop doctrinal facility with them and to know how to make policy arguments about them.  

I like to introduce students to a wide variety of rules and doctrines so that when the partner they work for says "remittitur" they don't stand there looking at him like mackerel.  But that passing familiarity is just one of the things I try to offer them.  Its useful, but not the most important on my pedagogical hierarchy.

As for personal jurisdiction, the doctrine is a great avenue for teaching students not only the evolution of legal principles in response to changing times, but also how to synthesize a complex rule structure from a set of cases, to make policy arguments based on different interpretations of those cases, and what to do with plurality opinions.  Some of this they will learn in legal writing, some they will learn in constitutional law, but really you can't get enough training in these skills. It is the begining of developing judgment, the most valuable asset a lawyer can have.  You can do this in other ways, sure, but PJ happens to be a good way to do it too.

Finally, when I think back to law school the most valuable thing I learned for practice was how to make legal arguments using an "argument bite" approach and how to hang my policy arguments on a legal hook. That was how I developed the doctrinal facility that I used in practice and use in my research and writing today.  I learned this skill in property class. I also happen to have memorized the rule against perpetuities, but today I cannot apply it.  Argument bites, however, I've used them every day for more years than I care to admit.  People intrigued by this can email me and I'll send a you citation to the relevant articles.


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