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CIVIL LITIGATION: CRITICAL ISSUES AND POLICIES
This edited writing seminar will focus on the policy issues underlying civil procedure. During the first nine weeks of the semester, we will read new and classic articles relevant to the week’s topic. We will also discuss resources for researching procedure issues and writing research papers. 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:
January 26 Topic Due
February 16 Outline & Bibliography Due
March 23 First Draft Due
April 24 Final Draft Due
Your grade in this course will be based on your paper, your class participation, and your presentation of your paper to the class.
Reading Assignments: The reading assignments will be posted on TWEN. In addition, each student should acquire and read Eugene Volokh, Academic Legal Writing (2d ed. 2005). I suggest that you read through it before the end of January, and keep it as a reference as you work on your paper.
Papers: This is an edited writing seminar. The research and writing of the paper – process as well as final product – 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. The final paper will be worth 60% of your grade.
Presentations: Each of you will present and lead a class discussion on your paper 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 10% 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. In addition, you will have the opportunity to contribute to class discussion in two additional ways:
1) This course has a TWEN page. For each of the nine weeks in which there are reading assignments, each student must, through TWEN, post two thoughtful discussion questions regarding the week’s assigned reading (which do not duplicate those posted earlier) no later than noon on the Sunday before class.
2) Once during the semester, each student will be part of a group of 2-3 Discussion Leaders. The Discussion Leaders will meet together prior to the Monday class and, using their own insights into the materials and the discussion questions suggested by class members, plan the ways in which they will facilitate the class discussion for that day. I’d be happy to meet with any group that would like to discuss their plans, but you’re also free to plan the class on your own. You will have access to the TWEN site if you wish to distribute materials to the class in advance.
The quality of your collective class participation will make all the difference in our seminar experience. It is therefore worth 20% of your grade.
WEEKLY READING ASSIGNMENTS
Week One: Where Are We, and How Did We Get Here?
Stephen C. Yeazell, Re-Financing Civil Litigation, 51 DePaul L. Rev. 183 (2001).
Jack B. Weinstein, After Fifty Years of the Federal Rules of Civil Procedure: Are the Barriers to Justice Being Raised?, 137 U. Pa. L. Rev. 1901 (1989).
Marc Galanter, The Hundred-Year Decline of Trials and the Thirty Years War, 57 Stan. L. Rev. 1255 (2005).
Week Two: Access to Justice
Herbert M. Kritzer, Seven Dogged Myths Concerning Contingency Fees, 80 Wash. U. L.Q. 739 (2002) OR Marc Galanter, Anyone Can Fall Down a Manhole: The Contingency Fee and its Discontents, 47 DePaul L. Rev. 457 (1998).
A. Benjamin Spencer, Deconstructing Pleading Doctrine (draft 9/08) OR Christopher M. Fairman, The Myth of Notice Pleading, 45 Ariz. L. Rev. 987 (2003).
Gary Blasi, How Much Access? How Much Justice?, 73 Fordham L. Rev. 865 (2004).
Chief Justice Randall Shepard, Access to Justice for People Who Do Not Speak English, 40 Ind. L. Rev. 643 (2007) OR Nancy K.D. Lemon, Can Domestic Violence Courts Better Address the Need of Non-English Speaking Victims of Domestic Violence?, 21 Berkeley J. Gender L. & Justice 38 (2006).
Week Three: Empirical Research and Civil Procedure
Bryant G. Garth, Observations on an Uncomfortable Relationship: Civil Procedure and Empirical Research, 49 Ala. L. Rev. 103 (1997).
Theodore Eisenberg, et al, The Need for a National Survey of Incidence and Claiming Behavior (11/08 draft prepared for ABA Litigation Section Symposium).
Clermont & Eisenberg, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, 2002 U. Ill. L. Rev. 947.
Michael J. Saks, Trial Outcomes and Demographics: Easy Assumptions Versus Hard Evidence, 80 Tex. L. Rev. 1877(2002).
U.S. Department of Justice, Civil Bench and Jury Trials in State Courts 2005 (Oct. 2008).
Week Four: The Vanishing Trial
Robert M. Ackerman, Vanishing Trial, Vanishing Community? The Potential Effect of the Vanishing Trial on America’s Social Capital, 2006 J. Dispute Resol. 165.
Martin H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 Stan. L. Rev.1329 (2005).
Linda J. Demaine & Deborah R. Hensler, “Volunteering” to Arbitrate Through Predispute Arbitration Clauses: The Average Consumer’s Experience, 67 L. & Contemp. Probs. 55 (2004) OR Theodore Eisenberg et al, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Non-Consumer Contracts, 41 U. Mich. J.L. Reform 871 (2008).
Week Five: Judging
Chris Guthrie et al, Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1 (2007).
Jeffrey J. Rachlinski, et al, Does Unconscious Bias Affect Trial Judges?, (11/08 draft prepared for Law & Politics workshop at University of Chicago) OR Pat K. Chew & Robert E. Kelley, Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases, 86 Wash. U.L. Rev. – (forthcoming 2009).
Dan M. Kahan, et al, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. – (forthcoming 2008) (and watch posted videotape).
Jaya Ramji-Nogales, et al, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007).
Anthony Champagne & Kyle Cheek, The Cycle of Judicial Elections: Texas as a Case Study, 29 Fordham Urban L.J. 907 (2002).
Week Six: Juries
Kevin M. Clermont & Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 Cornell L. Rev. 1124 (1992).
Anthony Page, Batson’s Blind Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155 (2005).
Phoebe A. Haddon, Rethinking the Jury, 3 Wm. & Mary Bill of Rights J. 29 (1994).
Samuel R. Sommers & Phoebe C. Ellsworth, How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research, 78 Chi.-Kent L. Rev. 997 (2003).
William V. Dorsaneo III, Reexamining the Right to Trial by Jury, 54 SMU L. Rev. 1695 (2001).
Ted S. Eades, Revisiting the Jury System in Texas: A Study of the Jury Pool in Dallas County, 53 SMU L. Rev. 1813 (2001).
Week Seven: Issues in Complex Litigation
Select three articles from “Want to Know More” section of class TWEN page OR ALI Principles of Aggregate Litigation, Working Draft No. 5 (Oct. 2008).
Week Eight: Evaluating Rule Change Proposals: Pending Proposals to Amend the FRCP
Proposed Changes to FRCP 26 and 56.
Selected comments on the proposals available at the court’s website: http://www.uscourts.gov/rules/2008_Civil_Rules_Comments_Chart.htm
[Or, listen to the podcasts of hearings available at:http://www.uscourts.gov/rules/podcast.cfm ]
Week Nine: Comparative Civil Procedure
Andreas Lowenfeld, The Elements of Procedure: Are They Separately Portable?, 45 Am. J. Comp. L. 649 (1997)
Oscar G. Chase, Legal Processes and National Culture, 5 Cardozo J. Int’l & Comp. L. 1 (1997).
Samuel Issacharoff & Geoffrey P. Miller, Will Aggregate Litigation Come to Europe? (draft 11/08).
Weeks Ten through Fourteen: Student Presentations
