The New Dilemma for Civil Procedure (and Other Law School) Teachers

Abstract

First year law school civil procedure teachers have always faced dilemmas on classroom coverage. In the past, the chief dilemma, prompted by limited credit hour allocations, involved choices about what and how civil procedure laws were taught. Traditionally and currently, civil procedure teachers focus on the procedures of the federal constitutional Article III district courts. These procedures chiefly originate in written U.S. Supreme Court rules and Congressional enactments, as well as in case precedents. Teachers introduce students to civil procedure laws relevant nationwide; facilitate relative uniformity across state borders on how law students are trained, perhaps prompted by bar examiners and textbook publishers; and, engage in important training on case analysis and synthesis, on statutory and rule interpretation, and on inherent trial court authority.

Since the inclusion of federal civil procedure on the multistate bar exam (MBE) in February 2015, there are additional pressures to continue, if not do more, instruction on federal civil procedure. The initial set of sample test questions for the MBE exam confirm the importance to the bar examiners of such topics as federal district court subject matter and personal jurisdiction, venue, pleading, and trial processes.

Yet there are significant new counter-pressures on law school teachers arising from the ascending goal of graduating “practice ready” law students. Most recent law school graduates undertaking civil litigation will not soon-or perhaps ever - practice in the Article III federal courts, or do many trials when there. Emphasis on federal district court practices detracts from this goal. Understanding federal civil procedure laws does not make a law school graduate very “practice ready” to handle most forms of civil claim resolution.

In fact, whether yesterday, today, or tomorrow, civil litigation has been practiced primarily in state courts and in other state tribunals. More recently, increasingly civil litigation occurs in private dispute resolution bodies. In both state and private adjudicatory bodies, there are many significant civil procedure laws unrecognized in federal district courts. Practice ready lawyers will need some feel for these laws, though they may not be tested on the MBE.

Federal civil litigation practices, future bar exams, and the realities of nonfederal civil litigation may not all be able to be simultaneously pursued vigorously in required first year civil procedure courses. How can law school teachers better prepare students for the challenges posed by contemporary nonfederal civil dispute resolution while also insuring familiarity with federal district court practices? The answer: An intradisciplinary elective course on civil claims settlements where the focus would be on the major legal guidelines for amicable civil claim resolution. Such an elective course should, at the least, be intradisciplinary in that it addresses general U.S. and state legal norms on settlements including some civil procedure, professional responsibility, tort, contract, privacy, and tax laws. A more ambitious course could be both interdisciplinary and international in scope.

This article outlines an intradisciplinary course on civil claim settlements and suggests “practice ready” training requires other such courses.

Keywords: Civil Procedure, Law School, Law School Professors, MBE, Practice Ready, Bar Exam, Bar Examination, Intradisciplinary, Civil Claim Settlement