Discussion (1L): The Politics of Procedure

When you first encounter civil procedure in the fall quarter, it may seem dry and technical. With so much to learn so fast there isn't always time to talk about the political dimension of the rules. Simply put, the rules determine who gets access to court, for what types of claims, with what sorts of potential outcomes. In short, civil procedure rules have huge distributional consequences. Not surprisingly, then, the rule drafting process is dominated by interest group politics and in recent decades, key U.S. Supreme Court decisions on civil procedure have been shaped by the justices' ideological preferences. In this group we will read and discuss four topics that foreground the politics of procedure: 1. The rulemaking process. Who are the rule-makers? How are the rule-makers chosen, by whom? How does the rulemaking process work?; 2. The consequences of pleading standards and why they have become stricter over time; 3. The battles over discovery rules and why they matter; and 4. The politics of class action reform. Prior to each session, you will email me a 1-page reflections paper identifying the issues in the readings that you would like us to discuss. After the conclusion of the quarter, you will submit a 3-5 page paper reflecting on the political dimension of procedure with reference to the procedural issues we have discussed or others of your choosing. Elements used in grading: Full attendance, reading of assigned materials, and active participation. The seminar will meet four times during the Fall quarter. The class will meet 5:00-7:00pm, September 27, November 1, November 8. November 15.