Practical Use of Civil Litigation Theory

Limit: 12 Students

This seminar is designed to provide Capstone topics in Civil Procedure. I will cover 8 or nine topics in the seminar. These topics, which are both practical and philosophocal, are intended to provide a theoretical foundation for the drafting of procedural rules. For example, the first week will address the “textual” approach to civil rules. The reading deals with the different meanings of the verbs “shall,” “must,” “should,” and “may.” The readings include former Bill Eskridge book excerpts and Scalia’s works. Week #2 covers the alleged German advantage in Civil Procedure. We will read and discuss John Langbein’s famous article arguing that German judges are much more efficient than lawyers in making discovery decisions. He would place all fact development responsibility on the judge. Week #3 focuses on the related topic of judicial discretion. Most legal systems leave a great quantum of discretion on the trial judge. If it is not certain how to rule on a procedural issue we normally leave it within the judge’s discretion This reliance on discretion has grown recently and greatly makes in hard to reverse a trial judge using the tepid “abuse of discretion scope of appellate review. Readings will center on modern legal philosophers John Rawls and Ronald Dworkin.. Week #4 will challenge a Brunet theory and see if it can hold its own. I have written that the American enforcement of legal rights is a system of private attorney general enforcement. I defend this thesis by praising the private enforcement of legal rights brought in suits that are heavily incentivized and initiated by plaintiffs who hold a great amount of information about the dispute. Craig Johnston of our faculty has taken the opposing view, contending that leaving private enforcement of legal rights with the expert administrative agency is a superior method of law enforcement. We will revisit the so-called rules of standing during this week and students will hear that the law of standing is unnecessary, inefficient, and potentially unconstitutional. Week #5 focuses on the old-time religion of Administrative Law and its foundational theory of expert decision making. After discussing the New Deal hope that experts are the way to solid law enforcement, we will examine recent efforts to regulate by contract. The theme of expert dominated policy making might be advanced more efficiently by outsourcing to the right person or firm. Week #6 will cover arbitration and look to the theories that justify this growing way to decide disputes. It is uncertain whether arbitration works because it is created by contract and amounts to the parties agreeing to their own terms or whether it is just a means to avoid a jury. We will give special attention to the legal requirement of consent. Arbitration needs and even craves consent but courts have weakened this mandate. Claims that arbitration is the privatization of justice must be examined closely. Week #7 looks at the class action, a much attacked concept. We will read about the class action critics and evaluate their positions. Students will discuss the efficiency arguments of Kenneth Dam and Edward Brunet and the more modern thoughts of John Coffee.

Seminar Essentials: (Two credits) Each student will write and revise a paper. Students may elect to write their Capstone papers. No Exam. At the end of the term, students will present their papers orally at a Conference, normally held on a Friday night and Saturday morning. The class wil meet for weeks 1-11 of the semester; the Conference attendance is mandatory and far exceeds the four hours lost when not meeting the last two weeks. During the term, assigned students will lead the discussion of topics. Papers are due at the end of the term and there is an expectation that deadlines will be met.

Will meet Capstone with Professor’s permission.