Mon/Wed 2:30-3:51 and Tues/Thurs 12-12:54 in Rm. 204

July 27, 2016 Draft

Civil Procedure

Sections B&F

Fall 2016

Professor Myriam Gilles

Mon/Wed 2:30-3:51 and Tues/Thurs 12-12:54 in Rm. 204

Hello and welcome to law school.

I will be your professor for Civil Procedure this fall semester. This is just my second time teaching this course and your first time taking it, so we’re very much in this together. I promise to do my best to present the material in a clear, organized and (hopefully) engaging manner; in return, I expect you to work hard, read thoughtfully, actively participate in class discussions, talk to me after class or come to office hours when you’re confused or inspired, attend TA sessions, and be open to learning this material.

First off, what is civil procedure?

A course on civil procedure focuses on the rules that regulate the litigation of civil – i.e., noncriminal – disputes in American courts. Other first-year courses focus on substantive law – i.e., the law that regulates the rights and duties among individuals (property, contracts, and torts) or the power of the government over individuals (constitutional law). In comparison to the law that determines when a state government can restrict a woman’s access to an abortion, or the law that determines when an individual can hold a pharmaceutical company responsible for a drug that causes birth defects, the law of civil procedure can seem somewhat bland.

But this is a mistake. Herbert Packer, a famous academic, once wrote that “procedure is at the heart of all liberty.” The Bill of Rights to the U.S. Constitution contains ten amendments, five of which focus in whole or significant part on procedure. The foundation of the Anglo-American legal system, the Magna Carta of 1215, is famous primarily for protecting the right to petition for a writ of habeas corpus – that is, the right to access to a court to adjudicate the lawfulness of one’s punishment. Most litigators, whether in a civil or criminal practice, would agree that the weight of their time is spent on matters procedural. In other words, procedure is really important.

As a first-year course, civil procedure is particularly valuable because it introduces you to all of the constituent ingredients of a legal system. Your torts, contracts and property courses basically involve what is called “the common law,” a body of mostly judge-made doctrine that exists almost entirely in judicial opinions. Your constitutional law class is essentially a course about judge-made law, even though the opinions you read purportedly concern the proper interpretations of constitutional text.

Civil procedure goes beyond all of these. It requires you to grapple with statutes, the equivalent of administrative rules, constitutional law, and common law. It is a fascinating, complex, controversial subject – one that continues to develop and change in response to technological changes, increased demands on the legal system, and new ideas inspired by successive generations of lawyers.

Second, what does this course require of you?

Basic Course Requirements

Course requirements include class attendance and participation, completion of two assignments and a number of short quizzes, and a final examination.

Required Texts

Casebook: Babcock, Massaro & Spaulding, Civil Procedure (5th ed. 2013)

Rules Supplement: Federal Rules of Civil Procedure (Aspen 2016)

Although I will assign relevant rules and statutes from the rules supplement, please be sure to read any rule referenced in the reading even if I have not specifically assigned it. I’ve also provided some optional reading on Canvas – primarily newspaper and scholarly articles – for those who wish to delve deeper into particular topics.

Other Sources

The required reading, assignments and your thoughtful engagement will stand on their own as preparation for class and the exam, but you may find it useful, on occasion, to consult horn books or treatises for expanded analysis. I can recommend the following (on reserve in the library):

Shreve and Raven-Hansen, Understanding Civil Procedure

Friedenthal, Kane & Miller, Civil Procedure

Commercial outlines may be useful for gaining a sense of the overall structure of certain rules, and for checking your own outline, but they tend to oversimplify and should therefore be used, if at all, with caution. Outlines written by former students should be used with extreme caution: there is no substitute for mastery of the material through your own efforts.

Attendance. I monitor attendance, and repeated instances of lateness (>10 minutes) and especially absences will adversely affect your final grade in the course. If there are serious matters requiring your absence from law school – particularly for more than 1-2 days – you should contact the Office of Student Services, which will then notify all of your professors.

Participation

I expect you to come to class on time and to have done the reading. I also expect you to participate in class discussion, indeed, to seek opportunities to participate. The practice of law is a unique discipline that demands skill in advocacy (quite irrespective of whether one becomes a litigator); and developing these skills requires discussing and analyzing complex legal questions orally, often in groups and other public settings. I also believe that everyone has valuable contributions to make to the class. Accordingly, I will call on students at random during most class sessions, but also encourage voluntary contributions to class discussions. If I call on you and you are unprepared – that’s not good! But let’s not dwell on it for very long: simply indicate that you would like to pass and I will (likely) move on. But I will return with great frequency and high expectations to students who pass – not out of ill-will or hostility, but because it is my job to keep you on track and my goal to inspire you to work hard in this course. So, I encourage you to attempt a response (even when you are unsure) and to participate in class actively: you lose nothing for trying – I’m not in this to shame you, only to engage you.

Short Exercises and Quizzes

Over the course of the semester, you will complete two short written exercises designed to test your comprehension of the material and ability to clearly convey legal analysis. The first exercise will be peer-reviewed and the second will be reviewed by your teaching assistant. You will also be required to complete short quizzes on Canvas at the end of each unit. Quizzes are intended to ensure that you’ve read the material and grasped the basic concepts. Exercises will not be formally graded, but failure to complete them in the time allotted will adversely affect your final grade. Scores on quizzes will account for 10% of your final grade.

Teaching Assistant-led Sessions

Each of you will be assigned a Teaching Assistant – a 2L student who performed extremely well in my civil procedure course last fall. Your TA will meet with groups of 8-10 students every other week or so to review a problem or hypothetical related to the material we are covering in class. Your TA will also review and provide feedback on one written exercise based on a uniform rubric. Attendance at TA sessions is completely voluntary, but strongly encouraged. My hope is that your TAs will not only help you better understand the substantive material, but will also serve as valuable models and mentors. You will receive your TA assignment, room and meeting times, and more information about these sessions during the second-third week of classes.

Grading

The final exam will be a 4-hour, open-book, in-school exam in December. I will post my 2015 final exam and a few strong student answers on ANGEL, and will hold a separately-scheduled exam review session in late November to discuss the format and other issues relating to the exam. Your grade in this course will be primarily based on your performance on the final exam, 10% of your grade based on combined quiz scores. Although not formally graded, class participation may be used to break ties in the event that exam scores produce a dead heat; and poor attendance/excessive lateness and/or failure to complete assignments/quizzes will result in significant grade reduction.

Contact

My office is 1003 in the Dean’s Suite, and my email is . I will hold weekly office hours (TBD) and by appointment. Feel free to email me any questions regarding the material. When the entire class will benefit, I will post the question (anonymously, if you wish) along with my response on a discussion board of our Canvas course page.

Third, what topics will we study in this course?

Below is a general outline of the main topics we will cover this semester, followed by a partial syllabus to guide our reading for the first few weeks of the course; additional syllabi will be distributed over the course of the semester. This first syllabus tries to predict what we’re likely to cover in each class, but specific dates may change depending on our speed and other factors. And, as we proceed, I may make some minor changes, including the addition of short supplemental materials where appropriate, and, inevitably, a few deletions. While I will try to always announce the upcoming reading at the end of class meetings, it is your responsibility to keep track of and pace with our coverage. Try to stay fairly close to the material we are covering (rather than reading far ahead) so that the materials are fresh in your mind for discussion and analysis in class. Also, below each unit I have listed specific learning objectives that you should feel confident about before moving on to the next set of materials, as well as information on quizzes and assignments keyed to that unit.

Course Outline

I.  Due Process

II.  Personal Jurisdiction

III.  Subject-Matter Jurisdiction

IV.  Pleading

V.  Discovery

VI.  Summary Judgment

VII.  Trial, Appeals, Preclusion

Detailed Syllabus #1

I.  Introduction: Due Process

·  First principles: ch. 1A, pp. 1-32 – Aug. 29-31

·  The Right to Notice: ch. 1A, pp. 32-52 – Sept. 1, Sept. 6

·  Other Procedural Rights: ch. 1B, pp. 52-94 – Sept. 7-9[1], Sept. 12

o  Optional reading/watching available on Canvas:

§  Ray Rivera, Suit Claims Fraud by New York Debt Collectors, NY Times, Dec. 13, 2009 at http://www.nytimes.com/2009/12/31/nyregion/31debt.html?emc=eta1&_r=0;

§  Brooke Coleman, Lassiter v. Dep’t of Social Services: Why Is It Such a Lousy Case?, 12 Nev. L. Rev. 591 (2012);

§  Lucie White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the “Hearing of Mrs. G.,” 38 Buffalo L. Rev. 1 (1990);

§  Jon Stewart, “The Red Tape Diaries,” http://www.rawstory.com/2013/05/jon-stewart-veterans-affairs-is-the-guantanamo-bay-of-benefit-claims/.

·  Please complete Quiz #1 (35 minute quiz to be taken sometime between September 10-12).

·  TA-led sessions, Sept. 9-16: Review Exercises 1-2.

·  By the end of ch. 1A-B, you should:

o  understand basic features of procedural due process (notice, opportunity to be heard, quality of hearing rights, right to counsel in some contexts);

o  be able to evaluate, take and defend positions on contemporary issues involving due process;

o  understand the details of and rationales for service of process and waiver of service of process by mail (Rule 4);

o  appreciate the costs and benefits of American-style adversarial, lawyer-centered dispute resolution.

II.  Personal Jurisdiction

·  Introduction: ch. 1C, pp. 107-123 – Sept. 13-14

·  Specific PJ: ch. 1C, pp. 123-163 – Sept. 15, Sept. 19-20

·  General PJ: ch. 1C, pp. 174-201 – Sept. 21-22, Sept. 26

·  Cyber-jurisdiction: ch. 1C, 202-217 – Sept. 27-29

o  Optional reading:

§  Charles W. Adams, World-Wide Volkswagen, The Rest of the Story, 72 Neb. L. Rev. 1122 (1993) at http://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=1000&context=fac_pub;

§  David Post, A New Personal Jurisdiction Case, Wash. Post, Mar. 4, 2016 at http://wapo.st/1TZBxHs?tid=ss_mail

§  Hiroko Tabuchi, Volkswagen Challenges U.S. Jurisdiction in Emissions Scandal, NY Times, May 25, 2016 at http://nyti.ms/25iugGY

§  Alan Trammel & Derek Baumbauer, Personal Jurisdiction and the “Interwebs,” 100 Cornell L. Rev. 1129 (2015) at http://cornelllawreview.org/files/2015/07/TrammellBambauerfinal.pdf.

·  Please complete Quiz #2 (40 minute quiz to be taken sometime between September 26-29).

·  TA-led sessions, Sept. 23-30: Review Exercises 3-4.

·  By the end of ch. 1C, you should understand the fundamentals of personal jurisdiction, including:

o  the development of personal jurisdiction jurisprudence over time in response to social, economic, and technological changes;

o  the role of state long-arm statutes in determining personal jurisdiction;

o  the distinction between in rem and in personam jurisdiction;

o  the distinction between specific and general jurisdiction; and

o  how to analyze issues of personal jurisdiction over internet companies and other entities that transcend geography.

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[1] Please note that Friday, Sept. 9 is a Monday schedule so we will meet in our regular room from 2:30-3:51 that day.