Civil Procedure Doctrine Practice and Content 5th edition by Stephen Subrin, Martha Minow, Mark Brodin, Thomas Main ISBN 1454868378 9781454868378

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ISBN 10: 1454868378
ISBN 13: 9781454868378
Author: Stephen Subrin, Martha Minow, Mark Brodin, Thomas Main

Written by respected scholars and experienced educators, this book showcases rules and doctrine of civil procedure at work in actual practice of law. The procedural and nonprocedural aspects of the cases are thought-provoking, to hold students’ interest. Each chapter contains a well-written introduction, cases, and clear explanations of the doctrine, supported by comments and questions which deepen students’ understanding and clarify key concepts. This book also includes more than forty well-crafted problems the can be used in or out of class to to help students solidify their understanding of the materials.  In-class exercises and simulations based on two sample case files are integrated throughout. Pleadings, memoranda, transcripts, exhibits, motions, and more – all taken from real cases – appear in the Appendix.

Civil Procedure Doctrine Practice and Content 5th Table of contents:

1 An Introduction to Civil Procedure

A. What Students Should Know from the Start

1. Why Procedure Matters

2. What Is “Civil Procedure”?

3. Meeting the Players and the Institutions

a. Parties

b. Jurisdiction

c. Remedies

4. Sources for the Rules and Doctrines

5. How to Approach Studying

6. About This Book

7. Law as Theater

Milner S. Ball, The Promise of American Law: A Theological, Humanistic View of Legal Process

B. An Opening Case: The Power and Limits of Courts

1. Reading the Case

2. Reading a Federal Rule of Civil Procedure

3. Background of United States v. Hall

4. The Opinion

United States v. Hall

Comments and Questions

C. The Right to Be Heard: Elements and History of Due Process

1. Background of Goldberg v. Kelly

2. The Complaint

3. The Supreme Court’s Response

Goldberg v. Kelly

Comments and Questions

Frank L. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights

Tom R. Tyler and E. Allan Lind, A Relational Model of Authority in Groups

4. Costs of Process

Mathews, Secretary of Health, Education, and Welfare v. Eldridge

Comments and Questions

Jerry L. Mashaw, The Supreme Court’s Due Process Calculus for Administrative Adjudication: Three Factors in Search of a Theory of Value

Louis Kaplow, The Value of Accuracy in Adjudication: An Economic Analysis

Comments and Questions

5. Enemy Combatants and Due Process

Hamdi v. Rumsfeld

Comments and Questions

Practice Exercise No. 1: Designing a Sound Dispute Resolution Process

D. Access to Lawyers and to the Legal System

1. Access to Court

Boddie v. Connecticut

Comments and Questions

2. Access to a Lawyer

Lassiter v. Department of Social Services of Durham County, North Carolina

Comments and Questions

2 Remedies and Stakes

A. Introduction

B. Provisional Relief

1. Securing the Judgment: Attachments, Garnishments, and Sequestration

Fuentes v. Shevin

Comments and Questions

2. Preserving the Status Quo

Winter v. Natural Resources Defense Council, Inc.

Comments and Questions

Practice Exercise No. 2: Motion for a Preliminary Injunction

C. Final Relief

1. Equitable Relief

Walgreen Co. v. Sara Creek Property Co.

Comments and Questions

a. Equitable Relief and the Judicial Role

Brown v. Plata

Comments and Questions

Lon Fuller, The Forms and Limits of Adjudication

Abram Chayes, The Role of the Judge in Public Law Litigation

Practice Exercise No. 3: Equitable Relief in Carpenter and Warner

b. Enforcement of Equitable Relief

2. Declaratory Relief

3. Damages

Carey v. Piphus

Comments and Questions

a. Punitive Damages

Comments and Questions

Practice Exercise No. 4: Damages in Carpenter and Warner

b. Enforcement of Damages

D. Settlement

Steven Shavell, Foundations of Economic Analysis of Law

Comments and Questions

E. Financing Litigation

1. The “American Rule”

2. Fee-Shifting Statutes

3. The Effect of Rule 68 Settlement Offers on Attorneys’ Fees

Marek v. Chesny

Comments and Questions

Practice Exercise No. 5: Revising Fed. R. Civ. P. 68

4. Conditional Offer of Settlement

Comments and Questions

5. Frivolous Claims

6. Assessing the Value of Legal Services

City of Riverside v. Rivera

Comments and Questions

7. The Contingency Fee

8. Third-Party Litigation Financing

Jonathan T. Molot, Litigation Finance: A Market Solution to a Procedural Problem

Comments and Questions

Practice Exercise No. 6: Fee Arrangements in Carpenter and Warner

F. Contempt

David Luban, Legal Modernism

Walker v. City of Birmingham

Comments and Questions

Martin Luther King, Jr., Letter From Birmingham City Jail

3 Thinking Like a Trial Lawyer, Pleadings, and Joinder

A. Introduction

B. The Stages and Essential Concepts of a Civil Litigation

C. Claims, Causes of Action, and Elements

Practice Exercise No. 7: Initial Strategy Session in Carpenter

D. Pleadings and Amendments

1. The Purpose and Doctrine of Complaints

Conley v. Gibson

Comments and Questions

Ashcroft v. Iqbal

Comments and Questions

Bower v. Weisman

Comments and Questions

Practice Exercise No. 8: Analyzing 12(b)(6) and 12(e) Motions in Carpenter

2. Strategy Considerations

Practice Exercise No. 9: Considering the Warner Complaint

3. Technical Pleading Requirements

Comments and Questions

4. Anonymous Plaintiffs

Freedom From Religion Foundation, Inc. v. Emanuel County School System

Comments and Questions

5. Answers, Motions, and Affirmative Defenses

a. Preliminary Motions

b. Motions to Dismiss

c. Answers

d. Admissions and Denials

e. Affirmative Defenses

Practice Exercise No. 10: Analyzing the Answer in Carpenter

Review Exercise No. 1

6. Amendments

Singletary v. Pennsylvania Department of Corrections

Comments and Questions

Krupski v. Costa Crociere S.P.A.

Comments and Questions

Practice Exercise No. 11: Argument on Plaintiff’s Motion to Amend in Carpenter

Note: Tips on Arguing Motions

E. The Historical Background of Civil Procedure

1. The First Era: Common Law and Equity

a. Common Law Procedure

b. Equity Procedure

c. Coming to America

Comments and Questions

2. The Second Era: The Field Code

David Dudley Field, What Shall Be Done with the Practice of the Courts?

Comments and Questions

3. The Third Era: Federal Rules of Civil Procedure

a. The Rules of Decision Act, and the Process and Conformity Acts

b. The Rules Enabling Act and the Drafting of the Federal Rules of Civil Procedure

Comments and Questions

4. Are We Now in a Fourth Era?

Chief Justice Warren E. Burger, Agenda for 2000 A.D.—A Need for Systematic Anticipation

Simon H. Rifkind, Are We Asking Too Much of Our Courts?

Frank E. A. Sander, Varieties of Dispute Processing

Laura Nader, Commentary

Comments and Questions

F. Sanctions

Chaplin v. DuPont Advance Fiber Systems

Comments and Questions

Practice Exercise No. 12: Reviewing the Warner Answer Under Rule 11

G. Simple Joinder

Cooper v. Fitzgerald

Comments and Questions

H. Counterclaims and Cross-Claims

Podhorn v. Paragon Group, Inc.

Comments and Questions

Practice Exercise No. 13: Considering Counterclaims, Cross-Claims, and Rule 13(h) Additional Parties in Carpenter

I. Third-Party Practice

Gross v. Hanover Insurance Co.

Comments and Questions

Practice Exercise No. 14: Considering an Impleader in Warner

J. An Introduction to Necessary and Indispensable Parties

Temple v. Synthes Corporation, Ltd.

Comments and Questions

Daynard v. Ness, Motley, Loadholdt, Richardson & Poole, P.A.

Comments and Questions

K. Interpleader

L. Intervention

United States v. Northern Indiana Public Service Co., et al.

Comments and Questions

Review Exercise No. 2

Review Exercise No. 3

4 Discovery

A. Introduction

B. Discovery and Its Tensions

1. Discovery in an Adversary System

Hickman v. Taylor

Comments and Questions

Wayne Brazil, The Adversary Character of Civil Discovery

Stephen Landsman, Defense of the Adversarial Process

Comments and Questions

ABA Model Code of Professional Responsibility

ABA Model Rules of Professional Conduct

Comments and Questions

2. Efficiency, Effectuation Values, and Privacy

Loren Kieve, Discovery Reform

Comments and Questions

C. The Mechanics of Discovery

1. Discovery Techniques

a. A Brief Introduction to the Rules of Evidence

b. Depositions

c. Written Interrogatories

d. Production of Documents and Things

e. Physical and Mental Examinations

f. Requests for Admissions

g. Informal Discovery

h. Experts

2. The Scope of Discovery

Kubicki v. Medtronic

Comments and Questions

WWP, Inc. v. Wounded Warriors Family Support, Inc.

Comments and Questions

Trask v. Olin Corp.

Comments and Questions

Moore v. Miller

Comments and Questions

Silva v. Dick’s Sporting Goods

Comments and Questions

Kerwin v. Cage Fury Fighting Championships

Comments and Questions

Marfork Coal Co., Inc. v. Smith

Comments and Questions

Practice Exercise No. 15: Finding an Expert (and Expertise) in Carpenter

Practice Exercise No. 16: Analyzing the Scope of Discovery in Warner

3. Mandatory Initial Disclosures

Comments and Questions

Practice Exercise No. 17: Ethical Issues in Discovery

Practice Exercise No. 18: Discovery Planning in Warner

Practice Exercise No. 19: Evaluating Discovery in Carpenter

4. Foreign Discovery

D. Procedural Rulemaking

Catherine T. Struve, The Paradox of Delegation: Interpreting the Federal Rules of Civil Procedure

Stephen B. Burbank, Ignorance and Procedural Law Reform

Laurens Walker, Federal Civil Rulemaking

Letter of Transmittal from Chief Justice Rehnquist

Practice Exercise No. 20: Assessing the Rulemaking Process

5 The Right to Jury Trial and Judicial Control of Results

A. Values and Historical Background

1. Introduction

2. The Debate over the American Civil Jury

Jerome T. Frank, Courts on Trial

Harry Kalven, The Dignity of the Civil Jury

Valerie P. Hans and Neil Vidmar, Judging the Jury

Comments and Questions

3. The Historical Background of the Modern American Civil Jury

B. The Right to Jury Trial in Civil Cases in Federal Court

Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry

Comments and Questions

Practice Exercise No. 21: Legislative Exercise Regarding Right to Jury Trial

Practice Exercise No. 22: Law Firm Strategy Session Regarding Jury Trial in Warner

C. Jury Selection: Techniques and Purposes, Including Peremptory Challenges

1. Attorney Behavior

Comments and Questions

Valerie P. Hans and Neil Vidmar, Judging the Jury

Federal Jury Selection Statutes

Comments and Questions

2. Peremptory Challenges and Discrimination

Comments and Questions

D. Summary Judgment

1. An Extraordinary Remedy

Adickes v. S. H. Kress & Co.

Background of Adickes v. S. H. Kress & Co.

Comments and Questions

2. A Focal Point of Litigation

Celotex Corp. v. Catrett

Comments and Questions

3. The Fact-Law Distinction

William Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact

4. Strategic Considerations

Practice Exercise No. 23: Summary Judgment Motion Session in Carpenter

Practice Exercise No. 24: Summary Judgment Motion Session in Warner

E. Dismissal, Directed Verdicts, Judgments Notwithstanding the Verdict, New Trial Motions, and Motions to Vacate Judgment

1. Voluntary Dismissal

2. Involuntary Dismissal

3. Directed Verdict (Judgment as a Matter of Law)

4. Judgment Notwithstanding the Verdict (JNOV/Renewed Judgment as a Matter of Law)

5. Motions for New Trial

6. Judgments as a Matter of Law and New Trial Motions in More Detail

Galloway v. United States

Comments and Questions

Review Exercise No. 4

7. Motion to Vacate Judgment

Brandon v. Chicago Board of Education

F. Types of Verdicts, Bifurcation, Trifurcation, Instructions, Remittitur, and Additur

1. Types of Verdicts

2. Bifurcation and Trifurcation

3. Jury Instructions

Practice Exercise No. 25: Jury Instructions in Carpenter

4. Remittitur and Additur

Comments and Questions

Practice Exercise No. 26: Motions to Challenge a Jury Verdict

G. Closing Arguments

Lloyd Paul Stryker, The Art of Advocacy

Practice Exercise No. 27: Closing Argument in Carpenter

Tips on Making a Closing Argument

H. Appeals

Review Exercise No. 5

6 Alternative Dispute Resolution

A. Introduction to Mediation and Arbitration

1. What Advocates Say About ADR

2. What Critics Say About ADR

3. The Contemporary Discourse

Practice Exercise No. 28: Alternative Dispute Resolution Under Local Rule

Practice Exercise No. 29: Alternative Dispute Resolution in Carpenter

4. An Alternative to ADR

Stephen B. Burbank and Stephen N. Subrin, Litigation and Democracy: Restoring a Realistic Prospect of Trial

B. Managerial Judging and the Role of Courts in an Era of Alternative Dispute Resolution

William W. Schwarzer, Managing Civil Litigation: The Trial Judge’s Role

Judith Resnik, Managerial Judges and Court Delay: The Unproven Assumptions

7 The Choice of an Appropriate Court: Personal Jurisdiction, Notice, and Venue

A. Introduction and Overview

B. Jurisdiction over the Person or Property of the Defendant

C. The Traditional Conception of Personal Jurisdiction

Pennoyer v. Neff

Comments and Questions

Harris v. Balk

Comments and Questions

Hess v. Pawloski

Comments and Questions

D. The Modern Conception of Personal Jurisdiction

International Shoe Co. v. State of Washington

Comments and Questions

E. Note on Long-Arm Statutes

F. Note on Specific as Compared to General Jurisdiction

G. Note on Personal Jurisdiction in Federal Court

H. Note on Personal Jurisdiction Under International Law

I. Minimum-Contacts Analysis in Operation

World-Wide Volkswagen Corp. v. Woodson

Comments and Questions

Calder v. Jones

Comments and Questions

Walden v. Fiore

Comments and Questions

Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County

Comments and Questions

J. McIntyre Machinery, Ltd. v. Nicastro

Comments and Questions

Practice Exercise No. 30: Applying a Long-Arm Statute in Carpenter v. Dee

Massachusetts General Laws Jurisdiction of Courts over Persons in Other States and Countries

Burger King Corp. v. Rudzewicz

Comments and Questions

Practice Exercise No. 31: Ruling on a Rule 12(b)(2) Motion to Dismiss in a Contract Action

J. Personal Jurisdiction in Cyberspace

Rao v. Era Alaska Airlines

Comments and Questions

Practice Exercise No. 32: Electronic Contacts and Virtual Presence

Practice Exercise No. 33: A Twenty-First-Century Fish Story

K. Jurisdiction Based on the Presence of Defendant’s Property

Shaffer v. Heitner

Comments and Questions

L. Jurisdiction Based Solely on Personal Service Within the Forum State

Burnham v. Superior Court of California

Comments and Questions

M. General Jurisdiction

Goodyear Dunlop Tires Operations, S. A., et al. v. Brown et ux., Co-Administrators of the Estate of Brown, et al.

Comments and Questions

Daimler AG v. Bauman

Comments and Questions

N. Consent

Carnival Cruise Lines, Inc. v. Shute

Comments and Questions

O. Notice

Mullane v. Central Hanover Bank & Trust Co.

Comments and Questions

P. Venue and Forum Non Conveniens

Piper Aircraft Co. v. Reyno

Comments and Questions

Atlantic Marine Construction Company, Inc. v. U.S. District Court for the Western District of Texas

Practice Exercise No. 34: Location, Location, Location

Review Exercise No. 6

8 The Choice of an Appropriate Court: Subject Matter Jurisdiction and Removal

A. Introduction to Subject Matter Jurisdiction

B. Federal Question Jurisdiction

Louisville & Nashville Railroad Co. v. Mottley

Comments and Questions

Gunn v. Minton

Comments and Questions

C. Diversity Jurisdiction

1. Complete Diversity

McBride v. Karumanchi

Comments and Questions

2. Amount in Controversy

Comments and Questions

Review Exercise No. 7

D. Supplemental Jurisdiction

United Mine Workers of America v. Gibbs

Comments and Questions

Owen Equipment and Erection Co. v. Kroger

Comments and Questions

Finley v. United States

The Supplemental Jurisdiction Statute: 28 U.S.C. §1367

House Report No. 101-734

Comments and Questions

Practice Exercise No. 35: Challenging Subject Matter Jurisdiction in Warner

Practice Exercise No. 36: Challenging Subject Matter Jurisdiction in Carpenter

E. Removal

Comments and Questions

Review Exercise No. 8

9 Choice of Federal or State Law—The Erie Doctrine

Erie Railroad Co. v. Tompkins

Comments and Questions

Guaranty Trust Co. v. York

Comments and Questions

Byrd v. Blue Ridge Rural Electric Cooperative, Inc.

Comments and Questions

Hanna v. Plumer

Comments and Questions

Walker v. Armco Steel Corp.

Comments and Questions

Gasperini v. Center for Humanities, Inc.

Comments and Questions

The Last Words on Erie?

Shady Grove Orthopedic Associates v. Allstate Insurance Co.

Comments and Questions

Practice Exercise No. 37: Analyzing Vertical Choice of Law Issues in Carpenter

Review Exercise No. 9

“Reverse-Erie”

10 Finality and Preclusion

A. Introduction

Restatement (Second) of Judgments

B. Claim Preclusion (Res Judicata)—“Speak Now or Forever Hold Your Peace”

1. What Constitutes the “Same Claim”?

Restatement (Second) of Judgments

Car Carriers, Inc. v. Ford Motor Co.

Comments and Questions

2. What Constitutes a “Final Valid Judgment on the Merits”?

Restatement (Second) of Judgments

3. “The Parties Are the Same or Are in Privity”

Taylor v. Sturgell

Comments and Questions

Gonzalez v. Banco Central Corp.

Comments and Questions

Practice Exercise No. 38: Applying Claim Preclusion Doctrine in Carpenter

C. Issue Preclusion (Collateral Estoppel)

1. In Operation

David P. Hoult v. Jennifer Hoult

Comments and Questions

2. “Essential to the Judgment”

Jarosz v. Palmer

Comments and Questions

Practice Exercise No. 39: Applying Preclusion Doctrine in Warner

3. Nonmutual Issue Preclusion

Parklane Hosiery Co., Inc. v. Shore

Comments and Questions

4. Issue Preclusion in Mass Tort Litigation

Hardy v. Johns-Manville Sales Corp.

Comments and Questions

5. Issue Preclusion in Trademark Law

B & B Hardware, Inc. v. Hargis Industries, Inc.

D. The Counterweights to Finality

Federated Department Stores, Inc. v. Moitie

Comments and Questions

Practice Exercise No. 40: Preclusion and New Precedent in Carpenter

Allen v. McCurry

Comments and Questions

Summary Note on Cross-Jurisdictional Preclusion

Practice Exercise No. 41: Applying Preclusion Principles

Review Exercise No. 10

11 Class Actions: It All Comes Together

A. Introduction

B. Class Action Practice, Policy, and Context

C. Due Process Foundations

1. Adequacy of Representation

Allen R. Kamp, The History Behind Hansberry v. Lee

Hansberry v. Lee

Comments and Questions

2. Participation

Phillips Petroleum Co. v. Shutts

Comments and Questions

D. The Class Action Rule

1. The Contours of the Federal Rule

2. The Rule in Application

Wal-Mart Stores, Inc. v. Dukes

Comments and Questions

Practice Exercise No. 42: Class Certification in Warner

Note on Subject Matter Jurisdiction in Class Action and Other Complex Litigation

E. Revisiting the Judicial Role in Class Action Settlements

Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies

Comments and Questions

F. Preclusion in Class Actions

Martin v. Wilks

Civil Rights Act of 1991

Comments and Questions

Practice Exercise No. 43: The Supreme Court Addresses the Constitutionality of Preclusion Under the Civil Rights Act

Case Files

Carpenter v. Dee

Warner v. City of New York

Table of Cases

Table of Statutes and Rules

Index

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