CIVIL LITIGATION:
 CRITICAL ISSUES AND POLICIES
Syllabus

This edited writing seminar will focus on the policy issues underlying civil procedure. Topics will include the adversary system, the history and nature of procedural reform, judging, discouraging litigation, getting information, using juries, ADR and settlement, comparative procedure, and the future of civil procedure. During the first nine weeks of the semester, we will read new and classic articles relevant to the week's topic. During the last five weeks, students will present their papers to the class.

Each student will write a paper of at least thirty pages which critically analyzes some topic in civil procedure. The topic should be one that requires a policy analysis of the procedural phenomenon that you are considering. During the research and writing process, students will submit a topic for approval, hand in an outline and bibliography, a first draft, and a final draft. Deadlines for these stages are:

September 6: Topic Due (submit two choices)

September 27: Outline & Bibliography

October 25: First Draft

December 1: Final Draft

Your grade in this course will be based on your paper, your class participation, and your presentation of your paper to the class.

Papers: This is an edited writing seminar. The research and writing of the paper are therefore extremely important. In order to take advantage of the opportunity for editing, your first draft should be a full and complete draft of the paper. To reward you for taking this seriously, 10% of your grade will be based on this first draft. You may choose one of the topics listed below, or you may create your own topic (although all are subject to may approval). The final paper will be worth 50% of your grade.

Presentations: Each of you will present and lead a class discussion on your topic. Each presentation will last for about 30 minutes (we will do 4 per week during the last five weeks of the semester). I will try to organize the presentations so that they fall in a logical order. We will discuss the presentations in more detail as the time approaches. Your presentation of your topic to the class will also count for 20% of your grade.

Class participation: All students are expected to read all of the assigned material and to be prepared to participate in class. I expect you to attend all class sessions unless you have a valid excuse for your absence, and you should participate in a meaningful way in every class. Part of this participation begins even before the class itself. We will have a class list serve set up just for us (instructions for signing on and sending messages will be discussed on the first day of class). Each week, each student must email to the list two thoughtful discussion questions regarding the week's assigned reading (which do not duplicate those posted earlier) no later than 10 p.m. on the Sunday before class. The quality of your collective class participation will make all the difference in our seminar experience. It is therefore worth 20% of your grade.

In summary, your grade will be determined as follows:

• Class Participation -- 20%
• Class Presentation -- 20%
• Paper -- 60% (10% draft plus 50% final paper)

WEEKLY READING ASSIGNMENTS

Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031 (1975).

Monroe H. Freedman, Judge Frankel's Search for Truth, 123 U. Pa. L. Rev. 1060 (1975).

David Luban, The Adversary System Excuse, in The Good Lawyer 90 (1983).

John H. Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985).

Elizabeth G. Thornburg, Metaphors Matter: How Images of Battle, Sports, and Sex Shape the Adversary System, 10 Wis. Women's L.J. 225 (1975)

Week Two: The History and Nature of Procedural Reform

Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987).

Stephen Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 Wis. L. Rev. 631.

Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. L. Rev. 494 (1986).

Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59 Brook. L. Rev. 761 (1993).

Judicial Conference of the United States, Long Range Plan for the Federal Courts (1995), reprinted at 166 F.R.D. 49 (1996)(excerpts).

Week Three: Judging

Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374 (1982).

James S. Kakalik et al, Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data, 39 B.C. L. Rev. 613 (1998).

Thomas E. Shakow, Book Note, Picking Moderate Judges, 107 Yale L.J. 2333 (1998).

William M. Richman & William L. Reynolds, Elitism, Expediency & the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev. 273 (1996).

Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syr. L. Rev. 635 (1971).

Week Four: Discouraging Litigation

Richard L. Marcus, The Puzzling Persistence of Pleading Practice,76 Tex. L. Rev. 1749 (1998).

Stephan P. Burbank, The Transformation of American Civil Procedure: The Example of Rule 11, 137 U. Pa. L. Rev. 1925 (1989).

Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 Ohio St. L.J. 95 (1988).

Marc Galanter, Anyone Can Fall Down a Manhole: The Contingency Fee and its Discontents, 47 DePaul L. Rev. 457 (1998).

Roy L. Brooks, Adjudicating Claims, in Critical Procedure 79 (1998).

Week Five: Getting Information

Wayne D. Brazil, Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 Am. B. Found Res. J. 789.

Thomas E. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C.L. Rev. 525 (1998).

Elizabeth Thornburg, Rethinking Work Product, 77 Va. L. Rev. 1515 (1991).

Ronald J. Allen, Work Product Revisited: A Comment on Rethinking Work Product, 78 Va. L. Rev. 949 (1992).

Elizabeth Thornburg, Work Product Rejected: A Reply to Professor Allen, 78 Va. L. Rev. 957 (1992).

Charles W. Sorenson, Jr., Disclosure Under Federal Rule of Civil Procedure 26(a) -- "Much Ado About Nothing?" 46 Hastings L.J. 679 (1995).

Week Six: Using Juries

Stephan Landsman, The Civil Jury in America: Scenes From an Unappreciated History, 44 Hastings L.J. 579 (1993).

Marc Galanter, The Civil Jury as Regulator of the Litigation Process, 1990 U. Chi. Legal F. 201.

Stephen C. Yeazell, The New Jury and the Ancient Jury Conflict, 1990 U. Chi. Legal F. 87.

Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception & Politics of the Civil Jury, 80 Cornell L. Rev. 325 (1995).

Walter W. Steele, Jr. & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C.L. Rev. 77 (1988).

Kevin M. Clermont & Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 Cornell L. Rev. 1124 (1992).

Week Seven: Alternative Dispute Resolution and Settlement

Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073 (1984).

Andrew W. McThenia & Thomas L. Shaffer, For Reconciliation, 94 Yale L.J. 1660 (1985).

Owen M. Fiss, Out of Eden, 94 Yale L.J. 1669 (1985).

Tina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545 (1991).

Anne S. Kim, Rent-A-Judges and the Cost of Selling Justice, 44 Duke L.J. 166 (1994).

Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co- Opted or "The Law of ADR," 19 Fla. St. U.L. Rev. 1 (1991).

Lisa Bernstein, Understanding the Limits of Court-Connected ADR: A Critique of Federal Court-Annexed Arbitration Programs, 141 U. Pa. L. Rev. 2169 (1993).

Marc Galanter & Mia Cahill, "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339 (1994).

Week Eight: Comparative Procedure

Andreas Lowenfeld, The Elements of Procedure: Are They Separately Portable?, 45 Am. J. Comp. L. 649 (1997)(plus your choice of specific article in this symposium).

Oscar G. Chase, Legal Processes and National Culture, 5 Cardozo J. Int'l & Comp. L. 1 (1997).

Richard L. Marcus, 'Deja Vu All Over Again'? An American Reaction to the Woolf Report, in Reform of Civil Procedure: Essays on 'Access to Justice' (A.A.S. Zuckerman & Ross Cranston, eds.)(1995).

Neil Andrews, The Adversarial Principle: Fairness and Efficiency, in Reform of Civil Procedure, supra.

The Right Honourable the Lord Woolf, Access to Justice: Interim Report (1995).

Week Nine: The Future of Civil Procedure

Bryant G. Garth, Observations on an Uncomfortable Relationship: Civil Procedure and Empirical Research, 49 Ala. L. Rev. 103 (1997).

Paul D. Carrington, Virtual Civil Litigation: A Visit to John Bunyan's Celestial City, 98 Colum. L. Rev. 1516 (1998).

Panel Discussion, Civil Litigation in the Twenty-First Century, 59 Brooklyn L. Rev. 1199 (1993).

Weeks Ten through Fourteen: Student Presentations