Integrating Racial Justice into the Civil Procedure Survey Course
Posted: 4 Oct 2004
This paper was presented at the AALS Civil Procedure Conference in New York City in June 2003.
Civil procedure is not simply a set of technical rules governing the litigation process. True, it can be taught that way. As any proceduralist knows, however, civil procedure, however, can be much more. It touches on some of the nation's most pressing social justice issues of our times, ranging from full, fair, and efficient compensation of victims of mass torts to the democratic underpinnings of the system of trial by jury.
With the knowledge that civil procedure touches on important social justice concerns, this article lays out the case for raising issues of race, as well as class and gender, in the civil procedure survey course. There is every reason to try to integrate the most pressing social issues of our times in a class in which they naturally fit. This article also offers concrete suggestions on how one might integrate these issues into the survey course in civil procedure. In so doing, many examples are taken from cases included in John J. Cound, Jack H. Friedenthal, Arthur R. Miller, John E. Sexton, Civil Procedure: Cases and Materials (8th ed., 2001), perhaps the leading casebook, as well as one of the most traditional, in the field. This casebook has proven to be an effective teaching tool for civil procedure professors at schools across the country and, perhaps surprisingly to some, neatly lends itself to the integration of race, class, and gender into class discussion. In using the book, an instructor may raise racial justice concerns in the analysis of cases without the assignment of much in the way of supplementary material. Others who follow a similar approach may assign readings in addition to a casebook. Issues of race, class, and gender also can be raised with the use of most civil procedure casebooks; many leading civil procedure decisions commonly to the average casebook allow for such discussion.
The one prerequisite for following the suggestions in this article is a general commitment to a discussion, rather than a lecture, format. Many of the racial justice issues raised in this article can be posed to the class for consideration, debate, and dialogue. My hope in the civil procedure survey course is to highlight the difficulties posed by the questions, rather than to provide definitive answers.
Part I of this article outlines why civil procedure teachers should try to integrate social justice issues into the first year survey course on the subject. The focus tends to be on race, although issues of class, gender, and related issues come into play. Part II offers examples from a variety of civil procedure cases and subjects to outline how an instructor through use of the Socratic method might perform that task with a traditional casebook.
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