Civil Procedure

Fall 2014
Professor Suzanne Last Stone
Room 518
[email protected]
Brief Overview
The term procedure refers to two separate bodies of law. The first is the
constitutional command of due process in the Fifth and Fourteenth Amendments, which
is primarily defined through judicial cases. The second is the internal operating
commands of the courts designed to funnel litigation through the court system. These
internal operating commands are largely embodied in rules, such as the Federal Rules of
Civil Procedure, which are interpreted in judicial cases. Both bodies of law have common
aims: fairness and an orderly administration of justice.
We will deal with both bodies of law in this class. The first third or so of the class
deals primarily with the constitutional command of due process. In that third, we will
learn about the exercise of power by courts over persons and about notice and the
opportunity to be heard. The final third of the class is devoted primarily to the internal
operating commands. We will learn how claims for relief are presented to courts; the
bases upon which defendants may seek to have claims resolved without a trial; the
structure of discovery in federal cases; judge versus jury; and tools that courts use to
manage and limit the scope of litigation. The middle third of the class is devoted to
questions specific to the federal, as opposed to state, court system: What issues of law do
the federal courts have the power to pass on? What body of substantive law does the
federal court apply? Do not take these divisions too literally, however. For example,
several topics that we do in the last third (such as party joinder and preclusion) also raise
profound questions of constitutional due process and of the law to be applied in federal
courts.
A feature of Civil Procedure which may be different from your other first
semester courses is that the material does not so much build on one another in an orderly
fashion as intersect with one another. One could and many professors do begin with
the topics we do in the last third or in the second third, etc. Because so many topics
intersect, many students find that the material begins to click only toward the end of the
semester. Do not be surprised by this.
As you can see from the brief description above, this class also has many
elements in it. On the one hand, it involves classic issues of statutory interpretation. As
such, the class is a good preparation for statutory courses you will encounter in the
second and third years, such as tax law. On the other hand, many of the topics we will
learn raise complex issues of constitutional law. As such, the class will prepare you for
courses in Constitutional Law, in Federal Courts, and in Conflict of Laws.

Constitutional issues are often open-ended. Rarely, do you find clear answers to a
constitutional question. Instead, you acquire a sense of the relevant considerations and
arguments that may sway a court. So you certainly should not expect clear answers when
dealing with a question governed by open-ended constitutional provisions and the case
law interpreting them. Because we deal in part with statutes and rules, however, you may
be expecting that there are clear answers for issues governed by them. Sometimes that
will be the case but just as often the rules, too, will be open-ended and more like
standards requiring the application of judgment. In the beginning, it is often a source of
frustration not to encounter clear answers. When you get terribly frustrated about this,
just remember that if the answers were always clear, no one would need a lawyer. My
job is primarily to help you realize when there are clear answers and when there are not;
and to help you know what sorts of arguments to marshal in order to persuade a court to
rule in your clients favor. I hope you will come away from the class with an appreciation
of the inextricable combination of both uncertainty and predictability in law.
Pedagogy, Study Aids, Teaching Assistants
Law professors reluctance to lecture and to just give the rules or the bottom
line is not about hiding the ball. It stems instead from the deeply-felt notion that actively
comparing and contrasting appellate cases dealing with complex concepts leads to an
understanding of those concepts on a level deeper than one can get from a hornbook or
course outline. The desire to cover a lot of material or to move speedily from topic to
topic to prevent boredom is, in my view, detrimental to the main goal of a first-semester,
first-year class: to impart how to read a case (both text and sub-text) and to explore how a
series of cases form a body of doctrine built around an identifiable set of concerns and
themes (thereby increasing the capacity to predict where a court will go and what sorts of
arguments it will be open to consider).
In short, learning how to think like a lawyer is not a clich. In order to bolster
this process, from time to time I will assign discursive material analyzing a single classic
Civil Procedure case, drawn from Clermont ed., Civil Procedure Stories.
Nevertheless, students often ask about study guides and they can be useful as a
tool for review. In the past, students have found Glannon, Civil Procedure, to be helpful
on the technical aspects of the rules. In addition, a conceptual overview of the course that
may be useful after engaging the material in class is Samuel Isacharoff, Civil Procedure
(Foundation Press).
I also will be using three or four upper-class law students as teaching assistants in
this class. The teaching assistants will have the following responsibilities: 1) to provide a
forum for further application of the material you have learned to hypothetical cases; 2) to
teach several technical units (see the syllabus); 3) to go over the practice midterm with
you; and 4) to be a resource in the first instance for questions you may have.
Class Methodology

Needless to say, I expect you to come prepared for class and discussion. I will
often post questions to consider before class about the material we will be discussing.
This will help you prepare for class. I will call on students randomly, and also encourage
students to participate even if not called upon. I do not penalize for lack of preparation or
participation but strong performance in class is rewarded and so participation can affect
your final grade at the margins.
While I will miss you if you are not in class, please do not send me e-mails
explaining your absence (either in advance of or after an absence). If there are serious
matters requiring your absence from law school particularly if for more than one or two
days you should immediately contact the Office of Student Services, who will then
notify all of your professors.
I will use the ANGEL system to post the syllabus, additional reading assignments,
questions to consider before class, and any other pertinent announcements. I will also use
ANGEL to communicate with the class in case of unexpected changes to our schedule
and to post questions, answers, and comments related to the course. Finally, I ask that
you post on ANGEL any questions you might have about substantive issues in the course
or procedural matters, rather than emailing these questions to me directly, so that other
students who may have similar questions can read the exchange. I will not respond
immediately to every question posted, and urge each of you to think carefully about the
material and to try to resolve the questions on your own by re-reading and reviewing
difficult materials or raising questions in your TA sessions.
The principal evaluative tool will be the final examination. I will conduct a
separate review session to help you prepare for the exam and I will also give you an inclass practice midterm. While I will not grade the mi-term or give you individual
comments, I will post a model answer and you will have a chance to review your
midterm with the teaching assistants as well.
Occasionally, we will have to hold makeup classes during the semester. We will
be rescheduling class on Wednesday, October 15. I do not currently anticipate any
additional days when I will have to reschedule class but, if so, we will make up these
classes during the semester. I make every effort to record the rescheduled sessions.
Laptops
Many faculty here and at other law schools are concerned about the use of laptops in
class. We may experiment with a black-out week but you are otherwise permitted to use
laptops. Please dont surf, game, or IM etc. It is extremely distracting for you and me! By
the way, there seems to be increased evidence that note-taking by hand promotes greater
overall learning.
Office Hours

My office is in Room 518, where I will hold office hours. I will post those hours
on Angel when classes begin. If you cannot make it to office hours, then you should
make an appointment with me via email at [email protected]. If you are having difficulty
with the material, please do not wait until the end of the semester to approach me.
In order to get to know you better, I will require you to introduce yourself to me
during office hours in the first month of class. I will ask you to visit in groups of four or
five and will distribute a sign-up sheet in the first week of class.
Reading Assignments
Our casebook is Friedenthal, et al., Civil Procedure: Cases and Materials (11th
ed.), and all page references below are to that text. You should also have your statutory
supplement available in class. If I assign additional readings, I will let you know and
make them available on ANGEL. It is important to read the Notes and Questions in the
casebook.
While we will try to stick closely to the schedule posted below, the class-by-class
breakdowns are approximations. Occasionally we may need to slow down to assimilate
fully the more challenging material. This will be especially true in the first part of the
course. We will have opportunity to catch-up when we do less challenging material and
also later in the course when the material is no longer so new to you. If material needs to
be added or deleted, I will announce it in class and over ANGEL.
Finally, I highly recommend that you do NOT read ahead. You hopefully will
find that your ability to understand the cases will improve dramatically as time goes on
and it makes little sense to grapple with a case too early before the proper groundwork is
laid.

I.

The Demands of Due Process

A. Personal Jurisdiction
Class 1: 1-27 (read and absorb on your own); 75-86 Pennoyer
Class 2: 87-89 Hess
Class 3: 89-96 IS
Class 4: 97-104 Grey
Class 5: 104-108
Class 6: 109-124
Class 7: 124-150, Supp. 414 (Ainsworth)
Class 8: 150-158, Supp. 395 (Daimler)
Class 9: 165-180
Class 10: 180-191
Class 11: 194-196; 198 -200

B. Notice and an Opportunity to be Heard

Class 12: 201-209 note 4
Class 13: 243-258
II.

The Federal Courts in a Federal System

A. Subject Matter Jurisdiction

Class 14: 259- 260; 266-271; 274-278; 282-287; 291-299
Class 15: 291-299
Class 16: 299-311, 313-318
Class 17: 318-339
Class 18: 345- 347 note 1; 352-357; 71-74
B. The Erie Doctrine
Class 19: 397-409; Civil Procedure Stories (posted on angel)
Class 20: 409-418
Class 21: 418-434
Class 22: 440-446
Class 23: 446-469
C.Venue/Forum Non Conveniens
Class 24: 359-368 [skim]; 373-382
Class 25: 383- 396
Class 26: IN-CLASS MIDTERM
Class 27: REVIEW OF MIDTERM
III.

Chronology of a Litigation

A. Joinder
Class 28: 659-673
Class 29: 674-680
Class 30: 686-696
Class 31: 696-706
Class 32: 706-708
Class 33: 747- 7753, 769-771, 773-781; Hansberry 788 -792
Class 34: 792- 806
Class 35: Problem and Review
B. Pleading

Class 36: 562-563; 569 - 591

Class 37: 641-647; 593-598
Class 38: 610- 617, 627- 639
C. Discovery Lecture and sample documents
Class 39: 831-834, 851-856, 859-860 (skim), 886-897
D. Summary Judgment and Trial
Class 40: 947-957
Class 41: 957-976
Class 42: 1054-1059, 1061-1072
Class 43: 1095-1097, 1111-1116 ; 60-65
E. Finality/Res Judicata/Repose
Class 44: 1211-1223
Class 45: 1235-1249
Class 46: 1271-1288
Class 47: 1288-1300
Class 48: 1301-1304, 1316-1322
Class 49: REVIEW
Class 50: REVIEW
Class 51: REVIEW
Class 52: REVIEW