Another Voice for the 'Dialogue': Federal Courts as a Litigation Course

Abstract:     
The traditional course in "Federal Courts" - built on the model established by the great Hart and Wechsler casebook - focuses on issues of federalism, separation of powers, and institutional competence. That focus provides a powerful intellectual model for organizing the materials that make up the field of study, and it is hard to imagine anyone teaching a Federal Courts course today without drawing heavily on that model. But the traditional model is deficient in one important respect. Most of the students who take a Federal Courts course do so because they think it will help them to practice law more effectively on behalf of their clients, particularly in the setting of litigation. A Federal Courts course falls short if it does not self-consciously and aggressively seek to serve that student interest. Fortunately, it can do so without sacrificing either the intellectual rigor or the intellectual rewards of the traditional model.

This essay sketches the elements of a pedagogic approach that builds upon the traditional model but adapts it to the goal-oriented perspective of lawyer-litigators. First, the course should be organized primarily on the basis of the tasks that lawyers perform. Second, the course should emphasize the differences between federal and state courts that lead lawyers to prefer one forum over the other, not only in civil rights cases, but in the general run of civil litigation. Third, the course should give heavy emphasis to the centrality of removal jurisdiction in civil practice today. Fourth, diversity jurisdiction should be given a full measure of attention and coverage. Finally, the course should make extensive use of problems that ask students to achieve particular results for a lawyer on one side of a dispute.

Keywords: federal couts, state courts, jurisdiction, pedagogy, problem method

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