Upper-year courses expand and elaborate on the skills, doctrines, and theoretical perspective introduced in the first year of study. The list below describes the kinds of courses that students might consider and the professional, intellectual, and practical opportunities that these courses offer.
As a complement to the Procedure area, students also ought to undertake substantive courses that will form the basis of their later professional practice. In addition, we recommend study of professional responsibility and advanced courses that discuss the lawyer’s ethical role in different professional contexts.
Advanced Civil Procedure Courses
Aggregate Litigation, Complex Litigation, and Class Actions
A course in aggregate litigation, complex litigation, or class actions covers a range of multi-party lawsuits that form the core of high stakes litigation practice. Substantively, the courses may involve securities regulation, constitutional law, bankruptcy, consumer protection, intellectual property, and other mainstays of significant litigation practice. Doctrinally, the courses focus on joinder, preclusion, coordination and consolidation of claims in litigation, professional ethics, judicial case management, and the prerequisites for certification of a class action. Conceptually, the courses test the ideal of individual justice and the promise of one’s “day in court”; examine institutional design in light of mass harms in modern society; consider the dynamics of group organization and representation in litigation; and question the comparative advantages of courts, legislators, markets, and administrative agencies to regulate complex policy questions that touch on constitutional norms.
Conflicts of Law
A course in conflicts of law covers questions of the applicable law in both interstate and international cases. The validity of choice of law and choice of forum clauses, rules of jurisdiction both in the United States and elsewhere, and the law on recognition and enforcement of judgments in the United States and elsewhere are examined. A course in conflicts of laws enables the student to navigate the world of transnational litigation and also is important to domestic and international commercial practice.
Federal Courts and the Federal System
A course on federal courts and the federal system covers advanced jurisdictional issues implicating the work of the Article III courts in democratic life. Most courses are designed from a Legal Process perspective, but they also may integrate perspectives drawn from Law and Economics, Critical Race Theory, Critical Legal Studies, and Feminism. In addition, different faculty may choose to incorporate perspectives from history, international law, and human rights. Topics include Congressional regulation of Article III jurisdiction; the scope of Article III jurisdiction; the law making powers of the Article III courts; and Article III regulation of legislative and executive activity. Traditionally, Federal Courts has been regarded as a “capstone” course that builds on earlier study of Procedure, Constitutional Law, and Administrative Law. In addition, students planning to apply for federal judicial clerkships will benefit from this course, although its value, in terms of skill development, intellectual growth, and professional relevance, certainly is not limited to this group.
A course on evidence covers the rules and common law principles that govern the information (through testimony, documents, and physical objects) a litigant may present to the fact finder at a hearing or trial. Included in the analysis are hearsay, relevance, burdens of proof, privilege, expert testimony, and rules governing the examination of witnesses. The course also addresses constitutional constraints on access to and use of various types of evidence.
A course in remedies covers the ways in which individuals translate legal rights into compensatory and other modes of relief. Most courses cover both common law and equitable remedies, and draw from a range of substantive areas, including public law and private commercial practice. A course in remedies is of great practical and conceptual significance: it implicates “the bottom line”; it raises questions of fairness, distribution, and administrative efficiency; it implicates institutional concerns about policy making and the role of the courts, legislatures, markets, and agencies. It is hard to imagine any litigator or commercial lawyer undertaking a serious practice without a strong grounding in Remedies.
Alternative Dispute Resolution
A course in alternative dispute resolution may focus on modes of non-judicial dispute resolution, such as negotiation, mediation, and arbitration, or on areas of ADR practice, such as International Commercial Arbitration and Investment Arbitration. Courses may emphasize practical skills development in diverse settings; they may include theoretical critiques of adversarial adjudication; and they may include interdisciplinary readings from psychology, culture, and economics. The trend toward “contract procedure” and the increasing prevalence of non-judicial modes of decision making underscore the professional and conceptual importance of courses in alternative dispute resolution to all students intending to be civil litigators.
Trial Practice, Appellate Practice Clinics, and Fellowships
A number of advanced courses provide experiential learning for students interested in trial work and appellate litigation. These courses touch on various substantive fields, including constitutional litigation, environmental regulation, commercial practice, and family law. Some courses involve simulated proceedings; others, live-client clinics. Courses include: Civil Litigation, Trial Practice, Federal Appellate Practice, Supreme Court Practice, Evidence: Litigation Planning, Civil Litigation Clinics (e.g., Immigration; Battered Women), and the Arthur Garfield Hays Civil Liberties Program. As students think about advanced practice-based courses in procedure, they ought also to give parallel regard to the substantive law courses that are the inventory for both civil litigation and transactional work: certainly, securities regulation, antitrust, and intellectual property, and to these we may want to add bankruptcy, agency, and trusts. Patent litigation, for example, requires the presentation of complex technological information often to lay jurors. NYU offers a specialized litigation course in patent law; it also offers specialized litigation and/or clinic courses in other areas, such as tax, immigration, civil liberties, and discrimination.
Courses on comparative procedure focus intellectual and professional attention on judicial systems other than that of the Article III courts. Courses may be dedicated to the study of state practice in the U.S., or judicial systems abroad. The courses may take a theoretical focus, or they may engage in skills development either at the trial or appellate level. Courses include: New York Practice, State Constitutional Litigation, Comparative Procedure, and International Constitutional Litigation. Comparative inquiry is intellectually rich and enhances critical skills that are essential for students who wish to pursue academic careers, cross-border transactional work, a family-law based practice, or multi-state or transnational litigation. Students seeking to work in the global economy (which includes almost all current professional work) would strongly benefit from a course that involves some study of international comparative procedure.
Courses on the theory of procedure engage some of the most vital conceptual questions of democracy, human rights, and institutional design. These courses offer different theoretical perspectives to a set of problems that are critical to political life, philosophical inquiry, and professional practice.