Civil Procedure: Theory and Practice
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Description
The first-year course in civil procedure presents a great challenge for both teacher and student. Unlike most of the first-year courses—contracts, torts, and criminal law—with which students have some familiarity, students approach civil procedure with little context. Concepts of jurisdiction and summary judgment seem completely foreign to many students. In addition, civil procedure is the classic “seamless web”; in order to understand any piece, you must understand the whole. Thus, it is imperative for the teacher to find a way to give students a feel for the interrelationship of various pieces of a litigation as each individual unit is examined. The teacher must also battle potential misconceptions about a course in “procedure.” Students often think that procedure is just about learning a series of mechanical rules against which the important policy disputes of substantive law are played out. Students are surprised to discover that procedure issues also turn on deep and interesting conceptual questions and that arguments about procedure are often the critical turning point in the outcome of litigation. Procedure is, in fact, one of the best vehicles for developing the full range of reasoning skills and perspectives critical to the discipline of law. In certain areas, such as personal jurisdictions and the Erie doctrine, the development of the case law is a paradigmatic exercise in legal process. Students in the course are also introduced to a broad range of legal sources. Aside from reading cases, students grapple with rules, statutes, and constitutional provisions, and must master the interpretive techniques unique to each. Consideration of lawyering strategy is a constant undercurrent. Understanding why the parties have sued in a particular court or framed the complaint in a particular way requires a thorough integration of theory and practice, doctrine and policy. We appreciate the enormous challenge of putting together a book that can meet all of these objectives. We have produced a book with significant links to the rich tradition of casebooks that precede it, but with a modern pedagogy and distinctive focus. In particular, we have tried to provide a direct and clear treatment of fundamental principles. For each topic, we provide introductory material that the students and teacher can use as a starting point, and from there we explore more difficult issues through the cases and questions. We rarely ask a question without providing at least the beginning of an answer. Cases are carefully framed to give students a sense of where each case fits in and why it has been assigned. We make explicit the relationship of a principal case to the other cases that precede and follow it. That straightforward approach facilitates our exploration of more advanced issues than are covered in other books. See, for example, our extensive coverage of preclusion, both domestic and interjurisdictional. We want students to get a sense of the depth and complexity of procedural issues. To that end, we use extensive notes to develop the relevant concepts, with reference to important scholarship and related case law. We begin in Chapter 1 with an overview of the entire litigation process. This approach enables the student at the outset to see how various pieces of the puzzle fit together and to gain an introduction to relevant terms and concepts. Not only do we provide a detailed summary of the stages of litigation, but we also take the reader through an actual case, illustrated with actual court documents. The case resulted in the landmark Supreme Court ruling on libel, New York Times v. Sullivan. It is, we think, a particularly engaging and self-explanatory introductions to how procedure works on the ground. We also provide an exercise in “Reading a Civil Procedure Case,” in which we make explicit many of the traditionally unstated assumptions about why and how we read judicial decision. From there we move in the first several chapters to the important federalism doctrines that form the core of most procedure courses: personal jurisdiction, subject matter jurisdiction, and the Erie doctrine. These beginning chapters not only serve as an important illustration of case law methodology but also allow us to emphasize the strategic choices that lawyers face every day in a federal system. That perspective is also characteristic of the later chapters on preclusion, remedies, and class actions. We consistently address the question of why the law matters to the parties and their lawyers. In addition, we pursue broader questions of policy and expose the students to contrasting state practices and international perspectives, as well. Perhaps the most innovative chapter of the book is the one on pleading, discovery, and adjudication, in which an actual case forms the centerpiece of the chapter. Each of us having taught different procedure courses for several decades, we are familiar with the attempts of many teachers to supplement the casebook with simulations and litigation documents. Our approach integrates these materials into the structure of the chapter. We have combined all of the elements of an adjudication into a single chapter and use a single product lability case as a teaching tool throughout. We provide a succinct but comprehensive presentation of the law and explore how those legal concepts apply to the case at hand. Students have the opportunity to see the actual court documents while they attempt to apply the rules and doctrine. They gain a good sense of how the legal concepts work, and they develop the critical skills of fact management and strategic judgment. This book lends itself to a variety of course hours and approaches. We have used the material in a 4-credit, one-semester course, as well as a 6-credit, two-semester course. While we believe that the order of chapters as presented is logical, we have successfully used different sequences as well. Each chapter is relatively free-standing.
Publication Date
2001
Edition
1
Recommended Citation
Silberman, Linda J. and Stein, Allan R., "Civil Procedure: Theory and Practice" (2001). Faculty Books & Edited Works. 679.
https://gretchen.law.nyu.edu/fac-books-edited-works/679
