Friday, September 28, 2007
Click the link at the bottom of this post to listen to this week's special Friday edition of the Thursday interiew. Earlier this week, we posted here about Prof. Jeffrey Parker's letter to the House and Senate Judiciary Committees urging postponement of the general restyling amendments to the Federal Rules of Civil Procedure. In this week's installment of the Thursday Interview, Prof. Parker talks about why he believes Congress should prevent implementation of the amendments before their December 1 effective date.--Counseller
****Update: You can find all of our restyling posts summarized here.
Thursday, September 27, 2007
In a recent case (sorry, no free link available but the Westlaw citation appears below), the Southern District of New York denied a motion to remand, beginning by noting that "'Tortured' is an understated description of the procedural history of this case." Before providing us with 31 pages of jurisdictional goodness, the court described the novelty of the issue:
The highly unusual facts of this case confront this Court with the following question: is remand necessary or appropriate where defendants remove an action to federal court, then seek to remand that same action to state court at a much later stage of litigation, after plaintiffs have added a jurisdiction-conferring federal claim and after removal is discovered to have been improvident? Despite sophisticated searches for similar cases, conducted by teams of lawyers for both sides and by this Court, this case appears to be sui generis. Indeed, no district court has been required to assess whether it could exercise jurisdiction based on a challenge made after it permitted an amendment to add a federal claim but later learned that the original basis of jurisdiction was defective. As a result, the Court cannot rely on a single controlling case or statute; rather, it must look to general principles drawn from the case law for guidance.
After an extensive review of the jurisdiction-curing cases from the Supreme Court and other appeals courts, the district court concluded:
In sum, after three and a half years of intense and complex litigation, scores of formal and informal court conferences, and many opinions, I conclude that plaintiffs' voluntary amendment, which added an unmistakable federal claim before the defect in removal was identified, is sufficient to confer subject matter jurisdiction upon this Court despite what now appears to have been an improvident removal. Any other result would ignore the years of effort by the Court and the parties-a critical factor specifically recognized by the Supreme Court and several circuit courts. I turn now to the question of whether this Court has the power to exercise supplemental jurisdiction over the state law claims and, if so, whether it should nonetheless exercise its discretion to remand those claims to state court.
In re METHYL TERTIARY BUTYL ETHER (“MTBE”) PRODUCTS LIABILITY LITIGATION, 2007 WL 2753275 (S.D.N.Y. September 17, 2007) --RR
Wednesday, September 26, 2007
Absent U.S. Congressional intervention, the pending amendments to the Federal Rules of Civil Procedure will take effect on December 1 of this year. Prof. Jeff Parker wants Congress to postpone the effectiveness of the amendments and, in an effort to convince it to do so, has sent the House and Senate Judiciary Committees this letter/working paper. The abstract follows.
I write to urge the Members of the House and the Senate to enact legislation postponing the effectiveness of pending amendments to the Federal Rules of Civil Procedure. Without intervening Congressional action, these amendments will take effect on December 1 of this year pursuant to 28 U.S.C. § 2074(a). I recognize that this is an extraordinary request, but this year's pending amendments also are extraordinary, as they will completely re-write each and every provision of the Civil Rules for the first time in their 70-year history. More fundamentally, they adopt a novel concept of rule interpretation – what one of the proponents calls "clarity without change" – that is antithetical to our jurisprudence and likely to produce disarray in the procedural system.
There is a substantial body of opinion, in which I join, that the proposed amendments are likely to produce a material degradation of civil justice in our federal courts by imposing enormous burdens of transitional cost, in exchange for little or no benefit. Perhaps more importantly, there is no indication that the judicial rulemaking committees have fully considered the potential consequences of these sweeping changes. For these reasons, the Congress should provide itself the opportunity to study these proposed rules – and the process and concepts that produced them – before they take effect.
Many thanks to Prof. Charles Campbell for bringing Prof. Fisher's working paper to our attention.--Counseller
****Update: You can find all of our restyling posts summarized here.
The Fifth Circuit handed down Norris v. Hearst Trust last week in which the court affirmed dismissal of the plaintiffs' breach of contract and wrongful termination suit on res judicata grounds. The key issue was whether in the prior suit the state court had rendered a final judgment before the plaintiffs nonsuited their case. The facts of the case raise some very testable issues on a first-year exam. What's the effect of an oral rendition when the court simultaneously announces its intent to later memorialize the judgment. What's the date of the judgment when an otherwise final judgment is later "corrected"? --Counseller
Tuesday, September 25, 2007
Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called “procedural common law” - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized as procedural common law. This body of law does not fit easily into the traditional account of federal common lawmaking power, because it generally lacks certain features thought characteristic of federal common law: It does not bind state courts, it falls outside of the recognized enclaves of federal common law, and it is not entirely subject to congressional abrogation.
This Article offers a tentative account of the power of the federal courts to make procedural common law. One explanation for this power is a variation on the “enclave” theory advanced in the context of substantive common law: the constitutional structure preempts the state's ability to regulate federal-court procedure, and, if Congress fails to specify procedural rules, federal courts must. This theory rings partly true insofar as it recognizes that federal-court procedure lies beyond state control. It is unsatisfying, however, insofar as it conceives of the procedural power of the federal courts as entirely derivative of and subservient to that of Congress. The Article thus considers an alternate theory: that procedural common lawmaking authority derives not from congressional default, but from Article III's grant of judicial power. This theory has more force insofar as it accounts for the fact that the power of the courts sometimes, even if rarely, exceeds that of Congress in matters of procedure. It depends, however, on the widely assumed but largely untested proposition that federal courts possess inherent procedural authority. The Article canvasses Founding-era history to determine whether the Constitution can fairly be understood to confer this power, concluding that the historical evidence, while far from overwhelming, supports the claim that federal courts possess inherent procedural authority. Building from this notion of inherent procedural authority, the Article then sketches a theory to explain the power of the federal courts to make procedural common law.
Monday, September 24, 2007
Though not right in the CivPro strike zone, the Wall Street Journal has an article in today's online edition of interest to both law students and the law profs (including CivPro profs) who care about the futures of those students. The article reports that, despite big pay increases at the largest law firms, most law students are having a difficult time finding employment that will allow them to service their enormous debt loads. According to the article, the poor job prospects for new lawyers is a result of flat demand for legal services coupled with an increased demand for legal employment. The article is not an encouraging read, but probably an important one.--Counseller
Sunday, September 23, 2007
I want to apologize in advance for writing yet another entry about my abstract concerns regarding due process. However, so far this is all the Civ Pro I know and this is the only way I have learned to approach the subject. I have a few thoughts about the cases I read for this week, but they have not yet been tempered by the Socratic Method. Since I find that class is often an exercise in learning how wrong my first thoughts really are, I will put my thoughts on litigation costs off till next week.
We wrapped up a fairly lengthy introduction to due process late last week. Yet, as thoroughly the issue was presented in class, I find myself wondering exactly what the function of the due process protection really is. Class discussion and the assigned readings have left me with conflicting notions of exactly what role it plays or should play in our system. I don’t know which notion is correct, whether it matters if I know which one is correct, or even whether there is an established or "correct" way to view due process.
My question is whether due process is meant to establish accurate procedures or to ensure that an individual is given "fair" treatment in some sense of the word that is either broader or narrower than mere accuracy. In other words, I am wondering whether a system that usually gets the answer “right” is a necessary and/or sufficient condition for the existence of procedural due process.
After finally reading what I understand to be the leading case, Matthews vs. Eldridge, I was initially convinced that accuracy plays a paramount role in due process. After all, an important part of the balancing test that the Matthews court used was the reduction in the risk of erroneous deprivation caused by a change in procedure. Because the reduction in risk must be combined with the benefit gained by reducing that risk and then weighed against the cost of that reduction, I understood that the system does not pursue accuracy at all costs. Yet, putting the case in these terms suggested to me that procedural due process is-- at least to a substantial extent-- about ensuring some socially optimal level of accuracy.
However, class discussion made me wonder if my understanding was off base, if not slightly callous. We talked about how the balancing test is blown out of the water if you attach an infinite value to an individual’s interest in "fairness." Though I don't recall this notion of "fairness" being defined, I do think it was meant to signify something other than receiving a procedure that produces an accurate result. I came away from that class with the idea that even in a theoretical system that is 100 percent accurate, it would still be entirely possible for an individual to be denied due process rights by that system.
Now, I am left wondering whether the conception of due process offered in class was just a theoretical musing or wishful thinking, or whether it was drawn from some line of reasoning that the courts have accepted or are likely to accept in the future. Fundamentally, I am wondering where are all of these principles come from, and whether our system can function if even a concept as fundamental as due process is so fluid and susceptible to argument. I am beginning to suspect my professor is training us to be the very people who generate the arguments for these principles. With every case we read, we are encouraged to deconstruct the arguments and attempt to redefine the terms.
Despite the fact that trying to make plausible arguments on both sides is kind of fun, I still want to know what due process IS. I have already come to accept that there won’t' be bright-line rules for everything. However, I do long for at least some well established blocks on which to build arguments. When I mentioned this idea to my classmate, he gave me an answer that really made me think about how our system really functions. He said, "Depending on what side of a case you are on, you may well be happy that there aren't too many well established rules."
Perhaps, I will come to accept that one day. Or, perhaps, there are some things that are more established then they now seem, and my prof. is only trying to push our reason to the limits. Either way, this is the mindset I will take to the new set of cases I read; I hope it is not based on a fundamental misunderstanding. --Crash
Friday, September 21, 2007
Click here to read about Nebraska State Sen. Ernie Chambers' lawsuit against God for "widespread death, destruction and terrorization of millions upon millions of the Earth's inhabitants" filed in Douglas County District Court in Nebraska. Sen. Chambers probably expected to create a stir with his lawsuit, but what he probably didn't expect was a response from God.
On Wednesday of this week, God entered a special appearance arguing that the court lacked personal jurisdiction over him and, subject thereto, argued that Plaintiff Chambers fundamentally misunderstands the nature and consequences of his gift of free will to mankind. Apparently, God hired a Corpus Christi, Texas lawyer to defend him.
God contacted me about the case earlier this week. I told Him to blow off the lawsuit and collaterally attack if and when Sen. Chambers tried to enforce the resulting default judgment against Him. God expressed concern about foregoing what He thought was a pretty good defense on the merits, and, alas, went with the Corpus Christi counsel. He may have also balked at my fee.--Counseller
In my last post I detailed how my approach for much of this semester has been to encourage students to develop an analytical framework rather than outline. Part of what this means is that I've accelerated the "freak out" questions that usually come in the weeks before the exam. Experienced professors and recent graduates know what I'm talking about--- that time in the Fall semester when Thanksgiving comes around, students sit down with a practice fact pattern and have no idea where to start and what to say. They then frantically appear in the professors office feeling as though they've been missing something all semester. There are ways to avoid this, such as to provide a "sample final" or midterm, but those students who respond to the offer for extra work are either the one's who get it, or the one's who are totally lost--- the large group in the middle "sorta gets it" and believes that what they don't get they'll figure out by the end of the semester. Unfortunately I don't think that time ever comes for many of them, and they leave the class feeling as though they were missing something. I'm hoping to avoid that feeling.
As a result, my approach has created what I'll call the "November in September" effect. The freaking out that normally occurs with a few weeks left in the semester is happening now, but on a somewhat smaller scale. As such, I'm fielding lots of questions. Some professors reading this may be thinking "What a pain in the a$$, I'm definitely not going to encourage them to figure stuff out early if I'll have to deal with a semester's worth of out of class questions and freaked out students" in fact, I briefly thought that myself. I mean, I have writing to do, all this teaching and question fielding is taking time away from my scholarship. But, all this teaching is also a part of my job (albeit not given as much weight as scholarship) and at the end of it all some of my students will walk away with $135k+ of debt. I think I need to give them something more than a guided tour of the pool house that ends with me kicking them into the deep end where they will sink or swim. So I push the analytical framework approach early, and with it comes early questions. My hope is that it will minimize the number of questions at the end of the semester and will improve their understanding of the material.
So how do I handle the questions such as "Is my framework right?," "Am I analyzing this correctly?" "How do I know the right approach, is there a supplement out there?"
First, I frequently use hypothetical problems forcing students to use their framework. My expectation is that they will follow along as we deconstruct problems in class. Hopefully while one student is being grilled other students will be following along answering the question on their own, and where they can't find the answer they will make notes to themselves on areas where they may need to flesh out their analytical framework.
Second, the casebook I'm using makes it a bit easier to point students in the right direction so they can answer some of their questions on their own. For example, yesterday we covered the recent Jones v. Flowers 126 S.Ct. 1708 (2006) case, dealing with notice. For didactic purposes Spencer left out of the casebook Roberts' examples of additional steps the government could have taken to ensure notice. Some students keying in on this wanted to know what additional measures might have worked. Rather than answer that question for them, I pointed them to their electronic casebook and informed them that they should click on the citation and read the full opinion. Clicking the link in the casebook took them straight to WestLaw, providing them with the full opinion and because it's WestLaw it also provided them with the KeyCiteNotes which helps to pull out some key rules from the case which are hyperlinked directly to the body of the case where the rule comes from.
I informed my students that having the entire opinion at their fingertips in this instance can help them to further develop their understanding of the case, and also provides one way for them to double check their instincts. I also told them that the hyperlinked full text of the case, the hyperlinks to other informative cases and the links to law review articles are great resources for when they are reviewing and studying the material. Lucky for me, they are reviewing and studying the material now and as we go along, rather than trying to cram and syntheisize at the end.
Here's my vision. By developing their analytical framework early on, they begin to think about the material and how to synthesize it. The downside of this approach is that it may raise more questions than answers for them, and they're going to look to me for the answers. I don't see my role as providing them answers; instead in keeping with the pool analogy I'll kick them into the deep end, but I'll make sure I taught them how to swim first. By using some innovative resources that I've detailed above I'm teaching them how to swim by teaching them that they can find answers and further understanding of the material by working through problems, re-reading cases, consulting on-point articles and legal research tools. Those are law student skills I believe they should learn for my class, and they are lawyer skills that they should begin developing for life.
I suppose in December I'll have to report back on this and tell you if my scheme worked.
Thursday, September 20, 2007
The Thursday Interview is back. This week's interview is with Jennifer Wolsing, an attorney in the litigation section of Blackwell Sanders, about her new article Daubert's Erie Problem. If you're a procedure and evidence junkie like me, her article is the perfect storm. Many thanks to Jennifer for taking the time to discuss her work with us.--Counseller
Wednesday, September 19, 2007
I'm at the point in the semester where I'm about to wrap-up Personal Jurisdiction. This seems like a natural break point to encourage my students to go back and review the material and make sure they understand what we've covered. That's exactly what I've told them to do, but I also told them not to outline.
You're probably wondering why the heck I would tell my students to review their material, but NOT to outline. The reason is simple, most of my first year law students (in fact many of my 2nd and 3rd year students too) don't know what the term outlining is intended to mean. So they go with what they know (for the most part undergraduate outlining experience) and they rehash their typewritten notes into very well organized, paginated, tabbed, bulleted dictation notes which don't help them understand the material now or for the exam. It seems there is no synthesis or attempt to understand the material, instead it's a clerical exercise, often involving 100's of pages by the end of the semester, especially when study groups collaborate to make one mega outline. What a waste of paper and time.
Instead of this "outlining" process, I've told my students to develop an "Analytical Framework." I don't use the term outlining, in fact I don't use it in any classes I teach. I instead always tell my students to develop a framework which helps them apply the material we've covered to new circumstances. The results have been extremely encouraging. Instead of fielding questions such as "what is the rule here?" I'm fielding questions such as "So when applying my minimum contacts analysis, should I read Shaffer to say that International Shoe always controls?" Those types of questions are the norm, and considering that we're in Week 4 I'm pleased to see my students synthesizing the material and thinking in terms of application and analysis not regurgitation. (In fact, in my upper level class one 3L student came to office hours to tell me that he had never thought of outlining as developing an analytical framework and since he has looked at it that way he has a whole new grasp of the material---whoa.)
With so much else to worry about, how did I integrate this teaching method into my class? Well, once we made substantial progress through Personal Jurisdiction I began hammering home the point of developing an "Analytical Framework." In the Hypo's found in the book and in the cases we covered I started pressing my students to tell me how they would approach the facts of a problem to resolve the jurisdictional questions. At first they ALWAYS wanted to jump to the quick answer "yes/no there is/isn't jurisdiction" or "yes/no there are/aren't minimum contacts." Rather than let them flail about I began to press them to tell me, if presented with such a fact pattern as a lawyer or a judge, what would be the first question they'd seek to resolve? I have forced them to articulate their rationale in light of what we've learned so far. I repeat this process through each step of the analytical framework.
Here's the hard part about this. First, it requires me to have my analytical framework fully developed---that is to say when it comes to personal jurisdiction questions I need to know today how I want students to approach the problem. If I don't have that in my hands it's tough for me to fairly evaluate how well they are comporting with the approach I believe to be correct and consistent with what we've covered. Luckily, I did this, and when we get to exam time the 5 page analytical framework that I developed will form something of a scoring sheet for that portion of the exam. Second, the in-class part of this is also extremely time consuming, at least at first. The first time I did this I spent 45 minutes with one student on the hot seat, and used him to walk the class through his analytical framework. What actually was happening was that I walked the class through my analytical framework by helping him along the way with guidance and suggestive questions. When we finish personal jurisdiction I will end by doing the same thing, and hopefully it will flow seamlessly.
With that said, it is time consuming at first but it gets easier After a little more than a week of this analytical framework talk, we've arrived at a point where I believe most of my students have taken the time to develop their own framework. When I pose a question, rather than flail they jump to their analytical framework (usually there's a shuffle of papers or a click click of opening windows). As they begin to ponder the question, their answers demonstrate a reasoned analytical approach which details the steps in their thought process, the questions they'd attempt to resolve, and how they would apply the facts of this case or hypo to their understanding of the law. This is a good time (at least for me).
One of my most enjoyable exercises is to take a case we've covered and to change the facts just slightly. Then, based only on the facts of that case (perhaps with my slight modification) I have the student explain to me how they would approach those facts within their analytical framework. Oftentimes I'll ask them to argue against jurisdiction where the court found that jurisdiction was proper. It's fascinating to watch them develop legal arguments and use what they've learned and to do so in an organized analytical fashion.
I'm not sure if time will permit me to continue this approach throughout the semester. However, I believe that getting them in the habit of developing an analytical framework at this stage in the semester will benefit them throughout the course, and hopefully throughout their legal career. I'm also hoping that it will make for some great exams to read over Christmas break. We'll see!
Wednesday, September 12, 2007
I survived the first week of law school and still have time to write about it.
I do find, during the week, that attending class, reading, sleeping and occasionally eating consume most of the hours in the day. However—either because the experience is novel or, hopefully, because I have found what I really love to do—the long hours in the library don’t seem too painful. I was never dreading law school (I did, after all, choose to attend), but I have to say I am pleasantly surprised at just how interesting I find the reading, and, especially, how much I love the feeling that the way I think is gradually being transformed each time I go to class. During undergraduate, I always found myself watching the clock during 50 minute lecture classes, so I was surprised when I found myself slightly disappointed that my first two hour torts class had ended.
Another thing that has taken me by surprise is just how wrong my expectations about my Civ Pro class have been proven already. My assumption that Civ Pro would be the most “black letter law” course on my schedule has been blown out of the water. In fact, at least in the first week, it is has been by far my most theory-laden course. Now, rather than worrying about how I will see beyond the details and find some principle to grasp on to, I find myself struggling to keep the concrete elements of the system in mind.
The class is staring with a discussion of procedural due process. We are examining who deserves due process, how much process is due, and what we can we learn about our system of government from the ways we answer these questions. In approaching these questions we have read a few cases to be sure, but we have also read journal articles, a federalist paper or two, and stories about individuals who have faced the system. At times-- for example when we discussed an article about the psychological impact the civil system has on different categories of people-- I felt like I was right back in philosophy class.
I trust that my teacher knows where he is going, and I am excited that this is the approach we are taking. I think it is both interesting and important to look at these fundamental questions. In fact, it seems like I got exactly what I was hoping for.
The one difficulty I am having with jumping immediately into this theoretic approach is that, in a Socratic environment, it is sometimes difficult for me to distinguish between when the discussion is about due process as it is applied, and when an outside point is being brought in. I think this difficulty is largely due to the fact that we, as 1L’s who are very new to the law, do always not have the language or the analytical tools to make those distinctions clearly. This problem is not completely unique to my Civ Pro class. In all of my courses, I have found myself struggling and watched some of my classmates struggle to keep straight when policy arguments are relevant to the discussion and when they are outside the scope of the question. It seems that the extra layer of theory that the Civ Pro readings have introduced has made navigating that distinction even more challenging.
But perhaps this is as it should be. As I read more judicial opinions, I am beginning to think that the relationship between the law and policy is neither simple nor clear. I am sure the mental exercise of trying to navigate through all of these layers will prove useful. Further, I am hoping that these big picture ideas will stick with me and keep me interested if the class should ever turn closer to that “black letter law” I was initially dreading. --Crash
Monday, September 10, 2007
You're probably thinking to yourself: Alex, this is an an odd time to address the topics of "choosing a casebook" and "creating a syllabus." We're starting Week 3 of the semester, shouldn't you have discussed this at the outset?
Well, I intentionally waited until now because I wanted to assess my casebook choice in light of its actual use, and whether my factors of consideration (that I applied in May) mattered in application.
First, regarding my choice of casebook. As a new professor teaching a subject for the first time the casebook choice is step one. In a class like Civil Procedure we receive at least 5 CASES of books, all touting the merits of their approach with titles that may suggest something about what the author's approach is, and others which don't suggest anything other than the topic. This coupled with the catalogs which also tout the approach chosen by the author, or the "widely regarded" acclaim of the casebook which is in its 10th, 12th, whatever edition leave a new professor feeling as though they are drinking from a firehose. Consider the titles: Civil Procedure: Cass and problems; Civil Procedure: Decisions, Practice and Context; Civil Procedure: Theory and Practice; Civil Procedure: Cases and Problems (different authors); Cases and Materials on Civil Procedure; Civil Procedure Cases, Materials and Questions; Civil Procedure; Civil Procedure: A Contemporary Approach ----you get the point.
Honestly, they all look the same, some are red, some are blue, some are brown, some are black. I know, I know, don't judge a book by its cover. So, if I'm not judging a book by its cover how am I judging it. It was quite simple, what I considered most important (in no particular order) were: Table of Contents (e.g. what are they covering and in what order), Roadmapping (the "stuff" at the beginning of a case/section), Questions and thoughts for consideration (the "stuff" at the end of a case/section), Teacher's manual, Other helpful teaching tools. One thing that did not matter to me, but which many said to consider was what my colleagues were using to teach. I took a different approach to this question because I had all summer to prep. So rather than going with a casebook merely b/c colleagues used it (and possibly finding myself wed to it for years), I wanted to ensure the casebook was one which reflected my style.
So, of the listed factors what mattered? (bear in mind, at this point in time I'm looking for reasons to get rid of a casebook so I can get into preparing)
This was relatively straightforward, and for the most part the casebooks were covering similar things. HOWEVER, what became clear to me was some casebooks had not been updated to reflect changes in the law (sure they have supplements). Oftentimes this ensured I kicked a casebook---for example, if the casebook didn't give much treatment to "Internet contacts" a hypo/question that ALWAYS comes up in class with today's tech savvy students I would kick the casebook. A second ground for kicking the casebook was the ORDER in which the casebook authors decided to cover things. I wanted to start with Personal Jurisdiction and I didn't want first year students to wonder why we were starting at page 500 or 300 in the book. That meant some otherwise good casebooks were kicked b/c the authors chose a different sequence.
Does the casebook give students a clear idea what to expect in the section and critical points to consider? Does the casebook provide guideposts along the way so a student knows where they are (especially in relation to what they just covered). Do the page headers and section headings appropriately key the student in on to where they are in theory as well as what this relates to in practice. Believe it or not, some casebooks failed miserably on this point.
This was an extremely important factor for me. I was looking for questions which were more akin to points for discussion. I wanted those questions to relate to what we were covering in the case. So, for example in Burger King, the court cites to McGee a case we had covered earlier in the semester. A sharp student while reading BK would say to themself "Whoa, McGee I remember that case. Why is it cited here, did it change here?" But, sometimes students will miss that on the first pass. Good thoughts for consideration in my mind would key the student in on that. So the casebook I chose includes a quote from B.K. and asks questions about McGee and whether the quote is consistent with McGee or whether McGee has been overruled. Such points for consideration force the student to go back and critically reread the case, and also compare and contrast the case to prior cases.
Some readers may think this is giving the student too much, and perhaps it is. But playing "I've got it, you guess it" seems to me an unfair way to teach and many casebooks followed an approach where the questions seemed designed to baffle, not illuminate. Moreover, many casebooks only had questions and did not have summary points for discussion or consideration. All of these factors helped me to narrow my field.
Once the field was narrowed to a casebook that was consistent with my teaching style/approach and philosophy about student learning the teacher's manual was the DECIDING FACTOR. I was looking for a TM which helped pull out what students needed to know from the case and why that case was important for student learning. Why it is important to us CivPro nerds for scholarship was far less important to me than why the case helped illustrate the development of an important concept. The TM had to adequately answer any questions posed in the book and had to summarize key points from the points for discussion. If that wasn't in the TM I likely wouldn't cover it in class, and students would quickly learn that the hypos and points for discussion were not important. Other key factors, although not dispositive (in fact the Casebook I chose does not have enough of these) was whether the TM referred to pages in the CASEBOOK. Oftentimes a TM would highlight a passage from the case. I know students will want to know where that passage came from, and having a page number handy makes for easy reference for all involved. I've had to find those myself and go back and forth between my TM, my teaching notes and the Casebook. Seamless integration of the TM and Casebook was key.
Finally, additional teaching tools definitely helped make my ultimate decision easier. Some of those include PowerPoint slides of lessons/cases, PowerPoint slides of hypos/questions/points for discussion. Also, sample syllabi that provide different options for different Credit Hour/Class Time scenarios is key. I teach a 3 credit one semester class, the two semester 6 credit syllabus is not helpful to me. I know that many casebook authors will happily provide this info, but not every new professor will feel comfortable calling up or emailing authors---if they have the time!
Finally, what I didn't see, but which would have made for a GREAT selling point was an Exam Bank with a sample answer key/grading template.
You're probably wondering which casebook I chose. The ultimate winner after applying these factors was A. Benjamin Spencer's Civil Procedure: A Contemporary Approach. This is the newest and most innovative Civ Pro casebook on the market. The students get both a Hardcopy and an Electronic Version of the book, available at http://www.interactivecasebooks.com . The instructor has all the same access, plus the entire TM is in electronic format, as are the slides for hypos, sample syllabi and other helpful materials. This means that I can copy and paste portions of the TM directly into my teaching notes. The interactive casebook also means that when I say to the students "Where do we find this concept of 'fairplay and substantial justice.'" They can keyword search the casebook and find it, making their laptop useful not only for notetaking but also for researching and learning. (and less used for IM'ing, Facebook'ing, shoe shopping, etc.). One other great thing about the casebook from an author's perspective is that to access the online material students must purchase a NEW casebook, b/c the activation card that comes with the casebook expires after a year. This is something undergraduate and non-law graduate programs have been doing for awhile, and it seems that Thomson-West has figured out a way to monetize this in the law school setting.
The features of the casebook itself that mattered the most to me, in addition to the factors I described above were:
- Overall format. The casebook is designed for ease of reading. The pages don't look anything like a standard casebook which reads something like a dictionary. The fonts are clear, the margins have ample room for notes (my copy is filled with notes).
- A Sample Litigation Diagram. This appears at the beginning of each chapter and helps the student understand where they are in the course. I reference it, and our syllabus repeatedly to provide big picture context.
- Text Boxes. These are throughout the casebook and make reference to things such as Practice Pointers that highlight something in the case for students to remember when they practice, Latin definitions, pointers to online resources, descriptions of major themes in sections/cases, make the connection boxes that help the student to connect info in CivPro to other law school classes, FYI's which discuss useful or interesting info related to the case. Most of these things, if they appear in another casebook appear as footnotes. These appear in Spencer's casebook as colorful graphic boxes. SIMPLY GREAT
- The Executive Summary. At the end of each case it summarizes main "top-level points," "deeper themes," and helpful additional resources.
So how has this fared so far?
Student response to the casebook has been overwhelmingly positive. Many have remarked to me that it is far easier for them to spend the time digging into the material with this casebook than in any of their other classes. They also like the fact that the points for discussion oftentimes relate to what I'm actually going to discuss in class (due to the relationback of the TM to the Points).
Relating the casebook to the order in which I want to teach was CRITICALLY important. We are marching through the casebook in order, and my questions, the casebook questions and points for discussion all relate back as they should and also look forward in the order in which we will deal with topics.
Teaching in this manner ensures that no part of the book presumes knowledge the student does not yet have. Where doctrines such as personal jurisdiction build upon standards articulated in prior cases this is vital. It also makes it easy when dealing with first year students who want to find every reason in the world to blame a professor for their failure to grasp the material. Consider some examples we all remember from law school or which we may have heard in teaching: "it's his first time teaching the class," "the casebook is confusing," "the professor started at page 300, how are we supposed to know what's happening," "the questions in the book don't have anything to do with what we talk about in class," and my personal favorite "just give me the modern day rule." A casebook and syllabus constructed to allay some of these barriers to learning coupled with an instructor who has a vision for how the pieces fit together makes for a much better learning environment for students.
The linear nature of this teaching approach also allows the instructor to table questions about later topics until that point in the semester without looking like a dodge---because it's not! If a student in my class asks a thoughtful question about subject matter jurisdiction or a question that sounds like Erie. I can say "Good question, but remember where we are at in the course and in litigation. We're on personal jurisdiction, we're trying to determine whether this court has the power to adjudicate this dispute. We'll get into those other questions later, make sure you master the detailed contours of this concept now." That helps the student stay focused and ensures those other students who are struggling don't get lost by writing down the answer to a relevant question from a different area of the course.
That summarizes casebooks and general teaching approaches. I hope current authors and profs found this helpful and I welcome comments.
The Thursday Interview's summmer hiatus is over. I'm looking to interview folks about their most recent scholarly works. Although I will be requesting interviews from some of you in the near future, please don't wait for me to contact you. Just shoot me an email with a brief description of the piece you want to discuss.--Counseller
Tuesday, September 4, 2007
The University of Pittsburgh School of Law and the Gallagher Law Library at the University of Washington School of Law have joined forces to create The Legal Scholarship Blog. The blog includes law-related calls for papers, conferences, and workshops as well as scholarly resources for deans and profs. The arrival of the Legal Scholarship Blog corresponds with the publication of this article, which was kind enough to mention our network, about the future of legal scholarship.--Counseller
Monday, September 3, 2007
While Alex is providing us a first-time-prof perspective on teaching Civ Pro, we thought it would be equally interesting to provide a student voice on learning our beloved course. So, I embarked on a covert mission, armed with secret decoder rings, and sought a student whose anonymity could be protected. Although our student is not studying in Alex's classroom, their contrasting perspectives should still be entertaining and educational. I now present (on tape-delay to protect anonymity), Crash McAvoy:
At the risk of seeming unoriginal, I suppose I will follow in Alex’s footsteps and discuss why I have decided to record my experience as a first year student taking Civil Procedure. I am using this first entry to explain this, not only because it seems like a good way to start such a blog, but also because, after spending the last couple of hours struggling through only half of my very first Civ Pro case, I feel compelled to remind myself why I would possibly devote any more time to this class than is absolutely necessary.
The main reason I decided to write is, while I have heard some convincing explanations for why Civ Pro is among the most important classes I will take this year, I find it difficult to internalize that idea. I can’t shake the notion that Civ Pro is boring-- a bunch of red tape and loopholes. My inclination is to think of it as a roadblock on the way to learning substantive law; in the undergraduate courses I took where case law was assigned, I quickly developed a habit of skipping over any procedural history. I also have a sinking suspicion that Civ Pro will be the class where I am first forced to accept procedural fairness as a substiute for finding the “truth,” a substitution the philosophy major in me wants to resist. In summary, I am writing this because, before ever setting foot in the classroom, I am worried I simply will not like Civil Procedure. (I should say that I do not think I am not alone in feeling this way. I could fill an entire entry with the things I have heard my peers say about Civ Pro without even purchasing a casebook)
This worries me because, throughout my academic career, I have found that I do much better in subjects with which I am able to truly engage. I am naturally a big picture person; I thrive on all things theoretical. However, I have found that I am able to deal quite effectively with details when I can see how they fit into a larger pattern and how they are connected to ideas I am invested in. I am hoping this blog will give me an opportunity to make those connections, to take a step back from trying to understand each case well enough to withstand a Socratic assault, and reflect on how the procedures I am studying, which may initially seem like arbitrary details to be memorized, are connected to fundamental ideas about our legal system and, by extension, our democracy. And, I hope, at the times where I am unable to see past the trees, there might be a law professor around to leave a comment that leads me to the forest.
Also, I hope that my posts will be candid enough to provide professors with the kinds of insights their own students might be afraid to share. Perhaps, the challenges and difficulties I face will not only illuminate some technical points that might prove especially difficult for an average student, but will also serve as a reminder of what it’s like to be going through Civ Pro for the first time and, more generally, what it’s like to be a One L.
Thanks to Prof. Counseller and Prof. Ryan for giving me this opportunity. For now, it’s back to the books.
I suppose I should explain my pseudonym as well. Civil Procedure remains a mystery to me, and, thus, I could not come up with a clever legal reference. So, I decided to go with a tribute to the protagonists of the two greatest sports movies ever made.