Procedure involves trans-substantive courses that are relevant and indeed vital to all students, whether they plan to practice in government, in business, or in the non-profit sector; whether they plan to litigate, to negotiate, to legislate, or to transact deals; whether they plan to work in the United States or abroad; whether their substantive focus is constitutional law, securities regulation, antitrust, international arbitrage, bankruptcy, intellectual property, and even criminal defense; and whether they plan to practice law or to become a scholar and teacher. Courses in Procedure involve skills development relating to professional activities including legal argument, court room practice, litigation, and contract negotiation; they involve theoretical issues involving such matters as separation of powers, federalism, individual rights, and institutional design; and they offer doctrinal exploration that touches on constitutional issues, statutory interpretation, and modes of regulation. Procedure courses are a natural and important complement to all of the work that our students may wish to pursue whether in the courts, the legislature, in the United States, or in the global economy.
All students are required to take a five-credit course in Procedure during the first-year of law school. The course generally focuses on federal procedure in the Article III courts. However, all courses incorporate some comparative element, drawing on the diverse processes of the fifty states, and well as international models. The basic course typically includes units on personal jurisdiction, subject matter jurisdiction, venue and forum non conveniens, pleading, choice of law (both horizontal and vertical), discovery, pre-trial resolution, jury trials, and preclusion. The course offers a strong introduction to constitutional questions touching on separation of powers, federalism, individual rights, and institutional competence. The course also provides an important opportunity for students to develop the skills of legal argument, reasoning by analogy, and sensitivity to fact development, as well as familiarity with the different professional roles of judge, litigant, counselor, reformer, and scholar.
Upper-year courses expand and elaborate on the skills, doctrines, and theoretical perspective introduced in the first year of study. As with other areas of legal study, no single approach can be taken to course selection; students must develop their own patterns of study in light of their professional aspirations, their past experience, and their curiosity about areas of law that are not yet known to them. Whether law school is regarded as professional school or as graduate school, students should continue to regard their education as one of intellectual pursuit, and not only of narrow career advancement, recognizing that interdisciplinary study, theoretical inquiry, and seminars that examine questions “at the margins” of existing doctrine indirectly promote professional success because of their emphasis on clarity of thought, creative argument, and lucid writing. We illustrate here the kinds of courses that students might consider and the professional, intellectual and practical opportunities that these courses offer.
Advanced Civil Procedure
- Aggregate Litigation, Complex Litigation, and Class Actions. A course in aggregate litigation, complex litigation, and class actions covers a range of multi-party lawsuits that form the core of high stakes litigation practice. Substantively, the cases can involve securities regulation, constitutional law, bankruptcy, consumer protection, intellectual property, and other mainstays of significant litigation practice. Doctrinally, the courses focus on joinder, professional ethics, judicial management, and preclusion. Conceptually, the courses interrogate the ideal of individual justice; examine institutional design in light of mass disputes; 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 conflict of laws enables the student to navigate the world of transnational litigation and also is important to 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.
- Remedies. 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 prevalence of non-judicial modest of decision making underscores the professional and conceptual importance of courses in alternative dispute resolution to all practicing lawyers, whatever their specific field of practice.
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, 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.
Courses on comparative procedure may focus on the states or on procedural 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, International Comparative Procedure, and International Constitutional Litigation.
Courses on the theory of procedure engage in some of the most vital conceptual questions of democracy, human rights, and institutional design. Courses in which the theory of procedure may be discussed include the Lawyering Colloquium, the Law and Philosophy Colloquium, the Constitutional Law Colloquium, and the seminar in Law and Culture.