Civil Procedure: Cases and Materials
Files
Description
This Seventh Edition, which has been prepared by Jack H. Friedenthal, Arthur R. Miller, and John E. Sexton, has had the benefit of many comments of colleagues from the large number of schools in which the first six editions have been used. These responses have been gratifying in confirming our own conclusion that the book is a highly successful teaching tool, regardless of the precise form of the civil procedure course being taught or of the specific material covered in it. As a result, this Seventh Edition preserves he same basic format and much of the material found in the earlier editions. Why then is a new edition necessary? Certainly a revision cannot be justified simply to achieve relatively trivial improvements or merely to replace the original text with more recent matter of similar substantive content. The reason for this volume is that since publication of the Sixth Edition there have been important developments in several areas of procedure, which give rise to intellectually stimulating questions and policy considerations that require inclusion in a contemporary casebook. Thus, the chapter on class actions has been substantially reworked to address mass tort litigation as an emerging trend in the law. The chapters on notice and personal jurisdiction have been revised to reflect significant changes in the Federal Rules of Civil Procedure, Rule 4 in particular. The chapter on supplemental jurisdiction has been revised to address the impact of amendments to 28 U.S.C. § 1367. The chapter on pretrial devices for obtaining information has been reworked, reflecting changes in the discovery process and the new provisions for mandatory disclosure. New sections, reflecting recent amendments to relevant statutes and to the Federal Rules, have been added to other chapters. Finally, introductory material, case notes, and citations to treatises, law review articles, and cases have been thoroughly revised and updated. We have looked for modern cases in which the facts are interesting, in which the conflicting policies seem to be in equipoise, or in which the context has extrinsic fascination, rather than for cases whose opinions offer tight little monographs on various aspects of procedure. After all, a student’s preparation and participation in class discussion frequently are in direct proportion to the extent to which the materials are interesting and involving. The notes and questions that follow nearly every principal case have been designed for the most part to encourage deeper analysis of the problems raised in the principal cases rather than to fill the student with additional detail. At the same time, we have tried to provide sufficient and selective references to secondary sources for the student who wishes to look further. We have not aimed at a “hard” book. Civil procedure is sufficiently mysterious to law student that its ability to challenge survives best when presented in a clear and simple environment. The danger is not of patronizing students, but of losing them. In the textual survey in Chapter One, in the long note on “the nature of the trial process” in Chapter Fourteen and in briefer introductions to other sections of the book, we have tried to tell students where they are going, and through extensive cross-referencing and questions we have tried to force them to review where they have been. We have not concentrated on the law of any one jurisdiction, although there is substantial emphasis on the operation of the Federal Rules of Civil Procedure, which have served as a model and focal point for serious discussion and implementation of procedural reform in a large majority of the states. In general the book operates on a comparative basis, except in contexts in which this approach has more limited utility than an in-depth exploration of a single system. A careful attempt has been made to strike a balance between exploration of underlying philosophical problems and analysis of day-to-day matters that arise frequently in office practice or in the courts. Our theory is that a mixture of both is necessary to give students a comprehensive understanding of procedure. How else can they learn why, even today, after so many y ears of study, revision, and reform, major proposals for alterations of the adjective law are still being made, and, undoubtedly, will continue to be made in the years to come? In addition, considerable use has been made of historical material, not only when it is directly relevant to today’s system, as in the study of the right to jury trial, but also in contexts in which it is necessary for a true grasp of the basic problems. Because courses in civil procedure vary greatly not only as to the hours allotted but also as to whether they are mandatory or optional and as to the year during which students are expected to take them, the materials in this edition are designed to provide maximum pedagogical flexibility. The cases and subjects covered have been selected primarily for a comprehensive, year-long course beginning in the first term of the law student’s first year; yet they may easily be divided into two or more quite different subjects to be given either as preliminary or advanced courses. The first chapter of this casebook sets forth a basic, textual statement of a procedural system’s framework, without which an understanding of any particular part of the system is difficult, if not impossible. This initial discussion defines those procedural terms necessary for comprehending legal opinions, whether they be of a procedural or substantive character. This, we believe, is an important function of a course in procedure, especially when it forms part of the first year curriculum. The textual analysis, which can be assigned for study with little or no class discussion, is followed by a series of illustrative cases designed to raise the basic problems of a procedural system, to illustrate the interplay among its various aspects, and to highlight many of the pints in the earlier text. An effort has been made to select cases that can be handles with relative dispatch so that the introduction does not become a de facto study of the entire course. In general, Chapter One is intended to let students form some idea as to the nature of the litigation “forest” before attempting to make them master any of its “trees.” After the first chapter, the structure of the book proceeds in a chronological fashion. The authors believe that this is the most logical way to teach civil procedure because it permits students to see the evolution and maturation of the litigation process. Furthermore, by putting personal and subject-matter jurisdiction and the materials dealing with the history of civil procedure before such subjects as pleading, joinder, and discovery, first year students are given some “breathing time” in which to absorb enough substantive law from torts, contracts, and property courses to enable them to grasp the significance of such matters as “pleading a cause of action,” “contributory negligence,” and “joint and several interests.” Finally, the authors have concluded that despite its conceptual difficulty, personal jurisdiction is a much more teachable and exhilarating introduction to civil procedure than is pleading. The chapters on jurisdiction include an extensive treatment of the federal courts. An investigation of a single system in detail seems the best way to impress students with the significance attached by courts to the concept of jurisdiction over the subject matter. The length of this material is greater than is customary in a civil procedure book, but part of it may readily be treated at the end of the course or be eliminated. We believe that without a working knowledge of such concepts as diversity of citizenship and supplemental jurisdiction, the procedural ramifications of the Erie doctrine and such indisputably procedural problems as joinder cannot be properly understood. We have concluded that to omit a plenary section on common-law pleading, the forms of action, equity, and the nineteenth century reforms (as many procedure casebooks do) would only lead to the introduction of this material in driblets by lecture during the study of modern pleading and other subjects with not substantial saving in time and probably at a cost in comprehension. At the same time we have eschewed the temptation to overcompensate for the disappearance of courses in equity; we have not attempted to cover the substantive doctrines of that discipline in a historical note. Although we believe history is invaluable to the study of modern procedure, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The materials in this volume refer to and are augmented by a Supplement, which contains not only the federal statutes and rules governing procedure, as is traditional, but also comparative state provisions. In some cases other materials, such as notes of Advisory Committees, also are included. Thus at a glance students are able to see the different solutions put forth for particular procedural problems and are induced to explore reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. Use of the Supplement has the added advantage of permitting teachers and students to keep abreast of interesting alterations in the oftenchanging statutes and rules governing civil procedure, without constant revision of the casebook itself. All teachers of civil procedure are well aware of how difficult it is for student to grapple with problems in the abstract; for example in the field of pleading they may have only a vague notion of what a pleading looks like. The Supplement therefore also contains a litigation timechart and an illustrative problem, showing how a case develops in practice and samples of the documents that might actually have formed a portion of the record. It is important to note that these samples are not designed as models to be emulated. To the contrary, they often contain defects intended to induce students to criticize them in light of knowledge they have obtained from the cases and classroom discussion. The cases and excerpts from other materials obviously have been extensively edited in order to shorten them and clarify issues for discussion. Except in a few situations, the materials from the Sixth Edition have not been significantly shortened in preparing the Seventh Edition. With regard to footnotes: the same numbering appears in the casebook as appears in the original sources; editor’s footnotes are indicated by letters.
Publication Date
1997
Edition
7
Recommended Citation
Cound, John J.; Friedenthal, Jack H.; Miller, Arthur R.; and Sexton, John E., "Civil Procedure: Cases and Materials" (1997). Faculty Books & Edited Works. 464.
https://gretchen.law.nyu.edu/fac-books-edited-works/464
