Elements of Civil Procedure: Cases and Materials
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Description
The aim of this Fifth Edition is to prepare students for civil dispute resolution in the 21st century. It combines new materials with well-tested approaches. These approaches include the objective of helping students to focus their critical powers on evaluating both the theoretical premises and the actual operations of modern rules of civil procedure. This edition adds recent Supreme Court decisions in such areas as jurisdiction, re judicata, joinder, and federalism. It also examines recent changes and proposed changes to the Federal Rules of Civil Procedure and the important developments in regard to summary judgment and Rule 11 practice. The earlier editions’ accent on judicial management and alternative dispute resolution processes is strengthened. To deal with the increasing number of complex cases involving widely dispersed injuries, we have expanded the treatment of the Agent Orange litigation, providing a setting in which to examine the special challenges to the courts and society posed by disasters that produce mass tort cases. This edition continues to view procedure from a number of basic vantage points: The historical perspective finds expression, not only in essays on the writ system and the evolution of today’s procedural law, but also in contemporary cases that demonstrate the significance of history for modern problems. Among these are the right to trial by jury and the availability of noncompensatory remedies for newly created rights. These developments make clear to the student that civil procedure is a dynamic pursuit, changing in response to evolving societal needs. The functional perspective is brought to bear in the consideration of such terms as “cause of action,” “substance,” and “procedure.” The search for the meaning of these terms carries Holmes’ famous message that procedural concepts are not crystals of invariant content: as to every one, purpose informs meaning. The value perspective is implicit in much of the material. Civil Procedure should not be understood as an esoteric collection of mechanical commands. Rather, values that animate other public debates are often at issue here. The responsibility of the community to its poorest members is discussed in the chapter on access to courts and lawyers; the needs of modern business rub against those of the individual in such areas as jurisdiction and joinder; privacy interests are at stake throughout the discovery and trial process; and issues relating to class actions pit efficiency objectives against demands for individualized justice. Of course, values that are special to procedure are also stressed; for instance, rules protecting the social interest in repose and the integrity of the adversarial process. The empirical perspective surfaces in several contexts, such as the judges’ appraisal of the strengths, weaknesses and desirability of the civil jury, the impact of the pretrial conference, and the efficacy of pretrial discovery. The empirical studies in the book underscore the point that rules of procedure are designed to serve practical ends. We are concerned to explore whether the rule works in practice, not merely in theory. Finally, the systemic perspective is conveyed by materials that impart the idea that the courts are but one part of a dispute resolution system and that other means exist to resolve legal controversies. As mediation, arbitration, and newer mechanisms such as mini-trials, rent-a-judge schemes, and summary jury trials are explored, students are encouraged to consider how to make the “forum fit the fuss,” and to weigh the extent to which the public’s interest in the judicial process is served or disserved by procedural devices tailored more closely to the needs of individual litigants. Procedure shapes the students’ conception of the legal profession, their roles as counselors, their duties to the court, and their positions as citizens with specialized understanding of the problems and limitations of the judiciary. Naturally, we consider it the most exciting course in the first year curriculum.
Publication Date
1990
Edition
5
Recommended Citation
Rosenberg, Maurice; Smit, Hans; and Dreyfuss, Rochelle C., "Elements of Civil Procedure: Cases and Materials" (1990). Faculty Books & Edited Works. 141.
https://gretchen.law.nyu.edu/fac-books-edited-works/141
