Civil Procedure: Cases and Materials
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Description
We believe that a course in civil procedure should be one of the most exciting and entertaining intellectual experiences in a student's law-school career. This book has been planned and executed in that belief. Moreover, our primary purpose has been to produce a device for teaching rather than a tool for research, and several consequences have flowed from this choice. We have looked for 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 have interested and involved him. In developing this book, we also were aware that other things being equal the modern student will pay greater attention to a recent case than to an older one, even though the latter case may be hallowed by decades of citation. To be sure many of the famous landmarks will be found in these pages, but the great majority of the cases are of recent date. 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 students that its ability to challenge analysis 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 Ten, and in briefer introductions to other sections of the book, we have tried to tell the student where he is going, and through extensive cross-referencing and questions we have tried to force him to review where he has 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 such as jurisdiction over the subject matter in which we believe the comparative 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 years of study, revision, and reform, major proposals for alteration of 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 volume 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 high- light many of the points in the earlier text. An effort has been made to select cases that can be handled 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 the student form some idea as to the nature of the litigation “forest” before attempting to make him master of 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 the student 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, the first year student is given some “breathing time” in which to absorb enough substantive law from his torts, contracts, and property courses to enable him 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 chapter on jurisdiction includes an extensive treatment of the federal courts. An investigation of a single system in detail seems the best way to impress the student 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 ancillary 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 no 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 treatment of parties has been divided between Chapter Six and Chapter Fourteen. The problems of proper parties, impleader, joinder of claims, and counterclaims are considered together immediately after pleading, because they are an indispensable part of the pretrial process of clarifying the issues and readying the case for disposition. The procedures relevant to more complex litigation have been split off, to avoid a needlessly long interruption in the chronological development of the course. Moreover by delaying their consideration until the end of the course, the study of class actions and intervention is usefully illuminated by the earlier coverage of res judicata in Chapter Thirteen. 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 the student is able to see the different solutions put forth for particular procedural problems and is induced to explore the reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. The decision to place comparative materials in the Supplement presented us with the difficult question of choice between materials to be kept in the text and those to be put into the Supplement. Our decision, based largely on the calculation that the least confusion would result from placing all of the material in one place, was to put virtually all statutory and rule material in the Supplement where it can be readily located through the Supplement's separate index. Whatever inconvenience may follow from the use of two books seems to us more than compensated by presenting this material in a form in which it can be studied side by side with the cases themselves. All teachers of civil procedure are well aware of how difficult it is for a student to grapple with problems in the abstract; for example in the field of pleading he may have only a vague notion of what a pleading looks like. The Supplement therefore also contains 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 the student to criticize them in light of knowledge he has 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. In all cases we have provided the reader with a sufficient reference to enable him to consult the original source if he is so motivated. With regard to footnotes: the same numbering appears in the casebook as appears in the original source; editors' footnotes are indicated by letters.
Publication Date
1968
Edition
1
Recommended Citation
Cound, John J.; Friedenthal, Jack H.; and Miller, Arthur R., "Civil Procedure: Cases and Materials" (1968). Faculty Books & Edited Works. 470.
https://gretchen.law.nyu.edu/fac-books-edited-works/470
