Civil Procedure

Fall 2016
Professor Suzanne Last Stone
Room 518
sstone@yu.edu

Welcome to Civil Procedure! Civil Procedure is a course I regularly teach and I love to
do so. Many students consider it the most difficult course they have in the first year
because, unlike Contracts or Property, it deals with issues no one other than lawyers will
encounter. That is also its charm. Civil Procedure is a special language and set of ideas
for lawyers.
What precisely is Civil Procedure?
The term civil is meant to contrast with criminal. We will be looking at the
procedure, or manner, in which noncriminal cases are shepherded through the legal
system. The term procedure actually refers to two separate bodies of law. The first is
constitutional law, which commands that government provide due process. The second is
the internal operating commands of the courts designed to funnel litigation through the
court system. These internal operating commands are largely embodied in rules, such as
the Federal Rules of Civil Procedure, which are interpreted in judicial cases. Both bodies
of law have common aims: fairness and an orderly administration of justice.
We will deal with both bodies of law in this class. The first third or so of the class
deals primarily with the constitutional command of due process. In that third, we will
learn about the exercise of power by courts over persons and about notice and the
opportunity to be heard. This part of the course is important because it involves the
intersection of civil procedure with profound constitutional obligations but it is also of
great strategic importance. Before a case can make its way through the court system, the
case must be filed. The most important decision a litigator makes is where to file the case
or, in other words, which forum to choose: state court of federal court and, if state court,
the court of which state? The constitutional doctrines we learn in this course greatly
affect these choices.
The middle third of the class continues to deal with the question of choice of
forum by focusing on the choice between litigating in federal or state court. Here, we ask:
What sorts of cases do the federal courts have the power to hear? What body of
substantive law does the federal court apply?
The final third of the class is devoted primarily to the internal operating
commands. We will learn how claims for relief are presented to courts; the bases upon
which defendants may seek to have claims resolved without a trial; the structure of

discovery in federal cases; judge versus jury; and tools that courts use to manage and
limit the scope of litigation.
Do not take these divisions too literally, however. For example, several topics that
we do in the last third part of the course (such as party joinder and preclusion) also raise
profound questions of constitutional due process and of the law to be applied in federal
courts.
A feature of Civil Procedure which may be different from your other first
semester courses is that the material does not so much build on one another in an orderly
fashion as intersect with one another. One could and many professors do begin with
the topics we do in the last third or in the second third, etc. Because so many topics
intersect, many students find that the material begins to click only toward the end of the
semester. Do not be surprised by this.
Skills you will learn
As you can see from the brief description above, this class also has many
elements in it. On the one hand, it involves classic issues of statutory interpretation. As
such, the class is a good preparation for statutory courses you will encounter in the
second and third years, such as tax law. On the other hand, many of the topics we will
learn raise complex issues of constitutional law. As such, the class will prepare you for
courses in Constitutional Law, in Federal Courts, and in Conflict of Laws.
Constitutional issues are often open-ended. Rarely, do you find clear answers to a
constitutional question. Instead, you acquire a sense of the relevant considerations and
arguments that may sway a court. So you certainly should not expect clear answers when
dealing with a question governed by open-ended constitutional provisions and the case
law interpreting them. Because we deal in part with statutes and rules, however, you may
be expecting that there are clear answers for issues governed by them. Sometimes that
will be the case but just as often the rules, too, will be open-ended and more like
standards requiring the application of judgment. In the beginning, it is often a source of
frustration not to encounter clear answers. When you get terribly frustrated about this,
just remember that if the answers were always clear, no one would need a lawyer. My
job is primarily to help you realize when there are clear answers and when there are not;
and to help you know what sorts of arguments to marshal in order to persuade a court to
rule in your clients favor. I hope you will come away from the class with an appreciation
of the inextricable combination of both uncertainty and predictability in law.
Pedagogy, Study Aids, Teaching Assistants
Law professors reluctance to lecture and to just give the rules or the bottom
line is not about hiding the ball. It stems instead from the deeply-felt notion that actively
comparing and contrasting appellate cases dealing with complex concepts leads to an
understanding of those concepts on a level deeper than one can get from a hornbook or
course outline. The desire to cover a lot of material or to move speedily from topic to

topic to prevent boredom is, in my view, detrimental to the main goal of a first-semester,
first-year class: to impart how to read a case (both text and sub-text) and to explore how a
series of cases form a body of doctrine built around an identifiable set of concerns and
themes (thereby increasing the capacity to predict where a court will go and what sorts of
arguments it will be open to consider). In short, learning how to think like a lawyer is
not a clich.
I will often post questions to consider before class about the material we will be
discussing. This will help you prepare for class. I will use the CANVAS system to post
the syllabus, additional reading assignments, questions to consider before class, and any
other pertinent announcements. I will also use CANVAS to communicate with the class
in case of unexpected changes to our schedule and to post questions, answers, and
comments related to the course. Finally, I ask that you post on CANVAS any questions
you might have about substantive issues in the course or procedural matters, rather than
emailing these questions to me directly, so that other students who may have similar
questions can read the exchange. I will not respond immediately to every question posted,
and urge each of you to think carefully about the material and to try to resolve the
questions on your own by re-reading and reviewing difficult materials.
Nevertheless, students often ask about study guides and they can be useful as
a tool for review. In the past, students have found Freer, Introduction to Civil
Procedure, 3rd edition, to be helpful. In addition, a conceptual overview of the course
that may be useful after engaging the material in class is Samuel Isacharoff, Civil
Procedure (Foundation Press).
I also will be using upper-class law students as teaching assistants in this class.
The teaching assistants will have the following responsibilities: 1) to provide a forum for
further application of the material you have learned to hypothetical cases; 2) to go over
the practice midterm with you; and 3) to be a resource in the first instance for questions
you may have. You will receive your TA assignment, room and meeting times, and more
information about these sessions during the second-third week of classes.
Attendance, Participation, Grading Criteria
I monitor attendance and repeated absences will affect your performance.
Needless to say, I expect you to come prepared for class and discussion. While I will
miss you if you are not in class, please do not send me e-mails explaining your absence
(either in advance of or after an absence). If there are serious matters requiring your
absence from law school particularly if for more than one or two days you should
immediately contact the Office of Student Services, who will then notify all of your
professors.
I will call on students randomly, and also encourage students to participate even if
not called upon. I do not penalize for lack of preparation if you candidly acknowledge
that you are unprepared as soon as I call on you. Not doing so, and attempting to bluff

ones way through, is a waste of your classmates time. If you are unprepared and do not
acknowledge it immediately, I will note that down and it may influence your final grade.
While I also do not penalize for lack of participation in class, strong performance in class
is rewarded and so participation can affect your final grade.
The principal evaluative tool will be the final examination. I will conduct a
separate review session to help you prepare for the exam and I will also give you an inclass practice midterm. While I will not grade the mi-term or give you individual
comments, I will post a model answer and you will have a chance to review your
midterm with the teaching assistants as well.
I do not currently anticipate rescheduling any classes. If an unexpected situation
arises that necessitates cancelling class, we will make up these classes during the
semester. I make every effort to record the rescheduled sessions.
Laptops
Many faculty here and at other law schools are concerned about the use of laptops in
class. We will experiment with a laptop black-out week during the first two weeks
of class and I reserve the right to extend it and also to enforce it periodically when
we study particular subjects that demand special attentiveness. In exchange, I will
post notes for you of the class discussion. By the way, there seems to be increased
evidence that note-taking by hand promotes greater overall learning.
Office Hours
My office is in Room 518, where I will hold office hours. I will post those hours
on Angel when classes begin. If you cannot make it to office hours, then you should make
an appointment with me via email at sstone@yu.edu. If you are having difficulty with
the material, please do not wait until the end of the semester to approach me.
General Course Outline
I.
II.

III.

The Demands of Due Process

A. Personal Jurisdiction
B. Notice and an Opportunity to be Heard
Federal Courts in a Federal System
A. Subject Matter Jurisdiction
B. Venue, Inconvenient Forum
C. Choice of Law in the Federal Courts
Chronology of a Litigation
A. Pleading
B. Discovery
C. Summary Judgment

D. Joinder
E. Preclusion
Detailed Syllabus #1
Our casebook is Friedenthal, et al., Civil Procedure: Cases and Materials (11th
ed.), and all page references below are to that text. You need not read the notes and
questions that follow the cases unless they are specifically assigned. You should also
have your statutory supplement available in class. If I assign additional readings, I will let
you know and make them available on CANVAS.
Below is Part One of a detailed syllabus in which I have set out the precise
material we ideally will cover in each session. Reality always falls short of the ideal.
Additional syllabi will be distributed over the course of the semester. While we will try to
stick closely to the schedule posted below, the class-by-class breakdowns are
approximations. Occasionally we may need to slow down to assimilate fully the more
challenging material. This will be especially true in the first part of the course. We will
have opportunity to catch-up when we do less challenging material and also later in the
course when the material is no longer so new to you. If material needs to be added or
deleted, I will announce it in class and over CANVAS. Finally, I highly recommend that
you do NOT read ahead. You hopefully will find that your ability to understand the cases
will improve dramatically as time goes on and it makes little sense to grapple with a case
too early before the proper groundwork is laid.
I also have set forth below each chapter the specific learning objectives that you
should master before moving on to the next set of materials.
I.

The Demands of Due Process

A. Personal Jurisdiction
Class 1, August 29: CB 1- 10; 75-86 Pennoyer
Class 2, August 30: 87-89 Hess
Class 3, August 31: 89-96 International Shoe
Class 4, September 1: 97-104 Grey
Class 5, September 6: 104-108 McGee Hanson
Class 6, September 7: 109-118; 120-124 WWV, Burger King Supp 378 Walden
Class 7, September 8: 124-150, Asahi, McIntyre, Ainsworth
Class 8, September 9: 150-158, Goodyear, Daimler (Legislative Monday)
Class 9, September 12: 165-180 Harris, Shaffer
Class 10, September 13: 180-191; Shaffer continued, Burnham
Class 11, September 14: 194-196, Bremen, Carnival Cruise 198-200; Rule 4
Class 12, September 15: Review

Learning Objectives:
By the end of this unit, you should understand:
what entitles a court to render a binding judgment over a person or over property?
what is the idea of sovereignty?
how personal jurisdiction has been analyzed as an expression of sovereignty and
of fairness
the development of personal jurisdiction jurisprudence over time in response to
social, economic, and technological changes;
the role of state long-arm statutes in determining personal jurisdiction;
the distinction between in rem and in personam jurisdiction;
the distinction between specific and general jurisdiction
B. Notice and an Opportunity to be Heard
Class 13, September 19: 201-209 note 4 Mullane
Class 14, September 20: 249-258 Doehr
Learning Objectives:
By the end of this unit, you should understand:
some specific features of procedural due process, such as notice, an adversarial
hearing, representation, etc.
how service of process and notice interrelate
the relationship between notice and rendering a judgment that will affect the
interests of persons not present before the court