CIVIL PROCEDURE
Kevin Clermont

Syllabus and Course Schedule

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INTRODUCTION

1. Course Format. There will be three 55-minute meetings per week throughout the year. In the fall semester, Sections A, B, and C will meet with Professor Clermont on Monday, Tuesday, and Wednesday at 12:20 p.m. in room G90. In the spring semester, Sections D, E, and F will meet with me on Monday and Tuesday at 12:20 p.m. and on Wednesday at 11:15 a.m., all in room G90.

2. Course Materials. The course materials comprise a "casebook" and various materials designed to supplement that casebook. The casebook is R. Field, B. Kaplan & K. Clermont, Materials for a Basic Course in Civil Procedure (7th ed. 1997) (hereinafter "FKC"). In addition, you should obtain: (i) Federal Rules of Civil Procedure - 2002 (hereinafter "Rules Booklet"), published by Foundation Press, and containing rules and statutes and other provisions with which we shall be continually working; (ii) K. Clermont, Civil Procedure (Black Letter Series 6th ed. 2001) (hereinafter "BLS"); (iii) the casebook's Supplement for 2002 (hereinafter "Supp"); and (iv) N. Hunter, The Power of Procedure (2002) (hereinafter "Power") [fall semester only].

3. General Approach to Course Materials. Contrary to the usual preconceptions as to the subject matter of procedure, this is not a how-to-do-it course. That is not the proper concern of the first year of law school. Our emphasis will be on the fundamental and recurrent problems of procedure rather than on procedural devices. It is true that we shall be working closely with rules and statutes, and that you will eventually be presumed to be intimately familiar with these and to have a grasp of the legal doctrine adhering to them. However, this mastery will not be treated as an end in itself, but merely as a means to attaining a higher goal.

This ultimate goal is to perceive the essence of the leading procedural mode in American courts today--the adversary system--and to develop a sense of the importance of any given procedural system in the structuring of the surrounding body of substantive law. One cannot begin to understand any legal system without a careful dissection of its procedural component.

This goal will be reached slowly, if at all, through the course of the year. Guard against impatience.

Our focus will be on the workings of a single procedural system, because our goal can in that manner be most economically reached. The choice of system is easy: we naturally shall look at the most important procedural system in the United States today, viz., the federal-court procedural system. See FKC 31 for further justification of this choice.

You first will survey that system, following the conduct of litigation in the federal courts from institution of suit through final appeal. This survey appears in Part One of FKC. This material is rough going, but essential. It serves to give a sense of procedure as a whole, and it provides a basis for the in-depth study of a series of major procedural problems on which most of the year will be spent.

After the initial survey, we shall be ready to turn to that in-depth study, by which we can make real progress toward our ultimate goal. In addition, this in-depth study will permit qualification and elaboration of some of the necessary generalities of the survey. Your in-depth study will focus primarily on three topics: (i) federalism and ascertaining applicable law in federal court; (ii) jurisdiction, process, and venue; and (iii) former adjudication.

To summarize, the survey is tough, demanding, and confusing, and it will be quite unlike your other courses. It is a necessary prelude to the in-depth study, which will be more like your other courses and which will resolve much of the initial confusion.

Our major tool in both the survey and the in-depth study will be FKC. However, you will be expected to make continual cross-reference to the Rules Booklet and the Supp.

Look over the Rules Booklet to see which sets of rules, statutes, and other provisions it contains. Whenever there is a reference in your readings to any of those provisions, you will be expected to refer to and read that provision.

All Supp entries are keyed by page to FKC. Upon completing any reading assignment in that book, you should check for and read any corresponding selection in the Supp. This is your responsibility.

There will be occasional assignments in and frequent references to BLS, but reading and review of that book will be primarily your responsibility. You should find it effective at dissipating excessive confusion.

4. Assignments. For the first class of either semester, you should read the introductions that appear on this Webpage, on pages 29-34 in BLS, and on pages 1-3 in the Rules Booklet, and then read the assigned pages 1-10 or 857-71 in FKC. You are expected to be thoroughly prepared for the first class.

For the subsequent classes, I have indicated assignments by means of the charts appearing at the end of this Webpage. Those assignments are subject to amendment. Unless otherwise indicated, those assignments are in FKC. Also, for each class you should cross-refer to and read all referenced material in the Rules Booklet and the Supp, as explained above.

The order in which we shall cover FKC, over the whole year, will be:

Fall Semester

• a. Topic A of Part One -- Introduction
• b. Topic B of Part One
• -- Survey
• -- Federalism

Spring Semester

• c. Part Five -- Authority to Adjudicate
• d. Part Six -- Former Adjudication

Generally, try to avoid reading ahead of the assignments. Each day's reading builds on the immediately preceding class discussion. Moreover, your participation in class discussion, and your returns therefrom, will be greatly augmented by having the day's reading freshly in mind.

5. Study Method. The reading assignments will be short compared with those to which you were accustomed in undergraduate courses. Do not be deceived--you will be expected not to read this material as you would an ordinary textbook, but instead to read it with excruciating, word-by-word care and with your critical faculties in high gear. Your readings should be viewed as a workbook. You will be expected, before coming to class, to have struggled with and thought out the questions appearing in the assigned readings. It should be noted that a substantial part of each examination in this course will be based upon the questions appearing in your assigned readings. However, you are not responsible for pursuing citations in the library; those citations in the assigned readings appear only for optional reference in case of special confusion.

More on study method is said in the first assignment in BLS.

6. Teaching Method. Attendance will be expected. There will be assigned seats. On the second day of each semester, I shall establish a seating chart, so on that day choose a seat that you will be happy with.

In the classroom, I shall be using a combination Socratic-lecture-discussion method. I shall feel free to call on students. Careful preparation will be expected. If when called on a student is unprepared, I shall move on, but within a few class days that student should voluntarily participate and thus signal a return to the classroom dialogue. If a student gives me a note of unpreparedness before class, likewise that student should voluntarily participate within a few class days. Performance in class, as well as attendance, can affect the grade, as explained below.

I am not doggedly Socratic. But I do pose questions, and then try to answer them with you. Lecturing straight through material is old-fashioned passive learning, by which you listen to the professor's opinions rather than develop your own. My modified-Socratic method--hard questions directed to a specially prepared group--is designed to encourage active learning. One of the most important things I'm trying to teach you is to pose the right questions in addressing the material. Indeed, my questions are the main thing I have to offer. Before class, you should try to predict my questions; in class, you should try to think out the answer along with the person asked; after class, you should ask yourself, "Why those questions in connection with this material?" Eventually, you must be left on your own to continue a lifetime of learning the law. I am trying to prepare you for that day. 

7. Office Hours. My office is Room 204 in Myron Taylor Hall. My office hours are 3:00 p.m. - 5:00 p.m. on Tuesday. Please observe those time limits. However, I want to stress my availability, subject to four caveats dictated by pedagogic concerns.

First, in the early going, do not come in with the purpose of my resolving your general confusion. I cannot do so. It is anticipated that the initial weeks of law school will seem a bit confusing, uncertain, disjointed, and disorganized. It is unavoidable, and even desirable as a stimulus to independent and active thinking. At any rate, do not become discouraged. For most students, things quickly do clear up considerably. (If, on the other hand, things immediately appear clear to you, you are probably approaching the materials and classes on too simplistic a level.)

Second, on specific questions concerning the materials or classes, think the question out beforehand to make sure that it is a real question and that you cannot solve it yourself. Law is essentially self-taught.

Third, ask in class those specific questions that you have been unable to resolve and that could be of general interest. In that way, everyone can benefit; I welcome questions from the floor. Office hours are intended for individual matters.

Fourth, once I have composed an examination, toward the end of the semester, I will not answer privately any such specific questions, because it is simply unfair to your classmates. Accordingly, try to formulate your questions before the very end of the semester and ask them in class or on this Website, or resolve to answer them on your own (you will learn a lot more that way anyway).

8. Practice Examination. In late October, all students in the first-year class will have the opportunity to take a practice examination, which will be optional and not for credit. It will be designed to enable you to appraise the effectiveness of your work and to discover possible defects in your methods of study, as well as to provide important practice in taking law examinations. You will hear more about this later.

9. Special Projects. Throughout the year, I shall maintain a site for this class on the Internet at http://clermont.law.cornell.edu/civpro.htm. I shall post announcements and some "handouts" at the site. On the examinations, you will be responsible for everything, excluding external sites linked as Web Resources, that appears at the class site during that semester.

10. Final Examinations and Grading. At the end of the fall semester there will be an examination up to four hours long. Your grade for that semester will be reported to you by the Main Office, not by me or my secretary. The examination itself will be designed to evaluate, not educate.

At the end of the spring semester there will be another examination up to four hours long. Your grade for that semester will be similarly reported to you. On that examination you will be responsible for the materials covered in the civil procedure course during the whole year, but with a heavy emphasis on materials covered during the spring semester. Let me explain more fully. Because the spring semester's study builds on the fall semester's foundation, the topics covered during the spring semester cannot be extricated from those of the fall semester. Nevertheless, my aim will be to examine on the spring semester's coverage. Indeed, given the presence of new students in the spring semester, I will make every effort to limit your responsibility to the most basic of the fall semester's fundamentals. Accordingly, I advise students in studying for the spring semester examination to review the fall semester efficiently by means of BLS.

My examinations will be open-book, which means you may bring into the examination room ONLY (a) FKC, the Rules Booklet, BLS, Supp, and any other materials distributed in connection with this course and (b) your class notes and any other materials substantially of your own preparation (including any outline prepared by a group of which you were a participating member) and a nonlegal dictionary. On the one hand, because I may make reference to these course materials on an examination, you will be expected to bring them with you into the examination room. On the other hand, no purchase of any hornbook is necessitated by the limited open-book format of the examinations.

To answer a regularly asked question, you may integrate into your notes or outline small amounts of material that you have xeroxed or copied by hand. But be reasonable; do not abuse this license by reproducing in your notes or outline substantial parts of outside references or others' notes.

Some students have complained about my not mentioning my recent writings on the subject of this course, including the books K. Clermont, Civil Procedure: Territorial Jurisdiction and Venue (1999), and R. Casad & K. Clermont, Res Judicata (2001). Although obviously I think your reading them would do you much good, their purchase is not required, and you may not bring them into the examination room.

The examinations will be varied in nature, probably including objective questions and traditional law-school hypothetical questions. A few of my older examinations are available in the library, and parts of my previous examinations are reprinted in BLS. Because these would give you some idea of the nature of my examinations, you are advised to review them. You should know, however, that I intend to include a multiple-choice portion that is considerably more challenging than the objective questions in BLS.

As noted above, a substantial part of each examination will be based upon questions appearing in your assigned materials. But those questions will likely appear on the examination with subtle variations. Thus, in studying you should try to understand those questions and their answers, not simply record in your book or notes a yes-or-no answer provided by your intuition, by a classmate, or by a cited case.

The examinations will be graded on an anonymous basis. Grading of each examination will be on a scale of numbers, but before recording or reporting the number will be converted to a letter in the following manner. The numerical grade, converted in the usual manner onto a letter scale, will yield a preliminary letter grade. Once this preliminary letter grade has been anonymously determined and then matched with a name, it may be adjusted somewhat up or down to yield a final letter grade that better reflects the student's attendance and performance in class. Normally, however, the preliminary letter grade will be the same as the final letter grade recorded and reported for the semester. The overall final grades will comport with the grading cap set by faculty policy.

ASSIGNMENTS

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FALL

ASSIGNMENTS

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SPRING

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