Using TLB to Teach Civil Procedure
August 11, 2022
August invariably brings not only heat and humidity (to Nashville, anyway) but also…. the first civil procedure classes. And, more pressingly, the need for a syllabus. This post continues TLB’s series on using the blog to teach law school classes. An earlier post discussed using TLB to Teach Transnational Litigation and there are more to come.
One of the delightful challenges of teaching civil procedure is to cover the important, must-know topics with care and attention, but at the same time to convey the dynamism and excitement of the field. Assigning parts of TLB as optional – or even required – reading can help achieve both objectives.
Litigation as actually practiced by many lawyers includes more transnational issues than standard civil procedure classes cover, and civil litigation is generally becoming more transnational over time. Adding occasional (or additional) transnational readings (whether optional or required) can accordingly sharpen students’ understanding of standard topics such as choice of law, forum non conveniens, personal jurisdiction, and more. It also helps students see the changes and new developments in areas that include personal jurisdiction, service of process, discovery, and beyond.
Below are some suggestions from my own syllabus, which uses TLB to help cover personal jurisdiction, choice of law, and forum non conveniens in a four-credit 1L class. As I suggest at the end of this post, instructors may also wish to add transnational materials to their coverage of other standard civil procedure topics including discovery, service of process, and enforcement of judgements. And all of these topics can be addressed in more detail to enhance an advanced civil procedure class.
It is SUCH A WIN when a personal jurisdiction case will be argued before the Supreme Court during a civil procedure teaching semester! I have reworked my syllabus to cover personal jurisdiction at the time the Mallory case will be argued in November so that students can listen to the oral argument and we can discuss it. That case offers a refreshing turn away from minimum contacts and towards one of the old Pennoyer fonts of personal jurisdiction: consent. I will assign (either as required or optional reading) at least two and maybe three TLB posts to help students see the broader implications of how “consent” is understood, including its relationship to other due process issues, and the impact of Mallory on transnational cases. TLB also plans to cover the oral arguments in the case, scheduled for November 8.
- Corporate Registration and Jurisdiction in Transnational Litigation. This post puts registration statutes in a broader context and also highlights that restricting personal jurisdiction in one doctrinal area inevitably causes pressure and change in other areas.
- D.N.Y. Holds Consent-Based Personal Jurisdiction over the PLO Unconstitutional. When assigning this post, I will tell students to focus on what should count as “consent” for due process purposes. This post also provides the opportunity to remind students of the potential differences between the Fifth and Fourteenth Amendment due process clauses in the context of personal jurisdiction.
- Foreign Defendants and the Future of Personal Jurisdiction. This post helps students see the effect of Mallory on cases with foreign defendants. It also does a terrific job of explaining the relationship between specific and general jurisdiction, an issue that I like to raise when teaching Daimler and Nicastro. This post is a great way to connect Mallory to other key personal jurisdiction cases and it, too, emphasizes that contracting some areas of personal jurisdiction exerts pressure on others.
Choice of Law
Civil procedure students sometimes struggle to understand choice of law. I devote little class time to this topic. I have assigned the TLB topic page on choice of law, which provides a one-paragraph explanation of choice of law and links to the Restatement and to a chart with state choice-of-law methodologies. I assign the links as optional reading. If students open the methodologies link, they will see the variety of potential approaches. Despite potentially similar material in their casebook, I find that students still do not really engage with the topic well or understand its significance. Hopefully these materials will help.
Forum Non Conveniens
Some instructors teach this topic in the basic civ pro course, others do not. Here are two assignment possibilities. If you do not teach this topic in depth, you can assign the TLB topic and primer pages as required reading to provide a basic overview. Teaching FNC is helpful, in my view, because it complements materials on venue, it provides additional ways of considering where litigation “should” take place, and it gives another place in which the relationship between state and federal courts are important. Plus Piper v. Reyno has great procedural history.
If you do teach FNC, I recommend assigning Can Defendants Be Sued at Home? Forum Non Conveniens, Expendable Lives, and the Legacy of Gore v. U.S. Steel Corp., which forcefully challenges the standard reasoning in FNC cases that the plaintiff’s choice of forum is entitled to little weight if the plaintiff is foreign. The post also provides a vehicle for considering racial justice issues in a 1L civil procedure course.
You might also consider assigning – at the end of the semester – Colorado Court Holds That Forum Non Conveniens Dismissal Is Not Preclusive. I will write a short review problem based on the facts of the Colorado case and then refer interested/advanced students to the blog post in the model answer that I draft and/or as part of the class discussion. The case and the post bring together FNC and preclusion and allow you to drill down on the state-v.-federal court calculus. What is not to love about that!
Service, Discovery & Enforcement of Judgments
TLB’s coverage of each of these topics gives you a lot to choose from in terms of optional (or required) readings that highlight the myriad transnational issues that arise in regular litigation. You might, for example, teach service of process against foreign defendants by email, the Supreme Court’s recent case on discovery in aid of foreign proceedings, or assign our primer on the enforcement of foreign judgments. Although these topics go beyond the traditional 1L curriculum, they illustrate the range of cross-border procedural questions that many aspiring litigators will confront in their future careers.
Happy teaching! And let us know how you use TLB and what we can do the make the site helpful for civ pro faculty and students, in addition to judges and practitioners.