Dean Paul Schiff Berman

Fall 2009

Welcome to law school! I am very much looking forward to meeting you all. I know that many of you are probably a bit apprehensive about how you should prepare for the beginning of classes, and you may also have heard (or read) horror stories about how difficult the first year of law school is, etc. My advice to you all is: don’t believe the hype. Law school is rigorous and it requires you to keep up with your work on a daily basis (unlike most undergraduate courses), but you have all been successful in school so far, and there is no reason to believe that you will not be successful in law school as well. As to preparation prior to arriving, I suggest that you simply relax and don’t worry too much about preparation. There will be plenty of time to learn about legal reasoning, philosophy, and doctrine once you get here.

Nevertheless, there is a reading assignment for the first day of Civil Procedure, and some of you may wish to begin thinking in advance about the issues we will discuss. Thus, what follows is an overview of the course, as well as the assignment for our first class meeting.

Most of the first year of law school concerns what lawyers call substantive law. Substantive law governs our behavior in ordinary life. It regulates the creation and exchange of wealth (property and contracts). It also defines conduct that can subject a person to punishment by the state (criminal law) or result in one’s having to pay damages to another for an injury to that person’s body, property, or psyche (torts).

This course, however, concerns a different aspect of law—procedure—and focuses on the particular procedures we have devised with regard to the resolution of disputes. Clearly, all societies must devise some way of resolving disputes. And there are, of course, many possible mechanisms for doing so. We could choose to fight duels, we could allow a ruler to resolve disputes by fiat, we could have the person of one particular caste or class always win, we could consult spiritual leaders, we could create ritualized contests, we could require therapeutic intervention, we could insist on mediation, or any number of other possibilities. The specific dispute processing practices a society chooses are inevitably a product of its values, its psychological imperatives, its history, and its economic, political, and social organization. The first important point to recognize about our inquiry, therefore, is that the procedures we will study represent only one set of choices. Moreover, those choices are not natural and inevitable, nor are they fixed and immutable. They are merely provisional compromises open to discussion and critique.

But if our procedural system is only one choice among many, we must examine not only how our procedural system works, but also why we have the particular system we do. What are our procedural choices, and what values are embedded within those choices? For example, consider the following situation:

Imagine that you are a university student who has just been accused of violating the Honor Code. What rights do you think you should be entitled to assert? What kind of hearing might you seek? Would you want someone else to speak for you? What sort of decisionmaker would you desire? Does it matter whether you are innocent or guilty of the violation? Is the severity of the penalty relevant?

Your answers to these questions will inevitably reflect the values you believe to be most important for a procedural system to protect. We will discuss this scenario in our first class meeting, so I will not address the problem in more detail now; let it suffice to say that there are numerous possible ways of resolving the Honor Code issue, each with its own advantages and disadvantages (again depending on the values you think are most worthy of protecting).

As I hope this brief introduction suggests, our investigation of civil procedure will always operate on at least two different levels at once. On the most pragmatic level, we will focus on the rules and principles that govern the behavior of courts and lawyers in dealing with disputes that turn into civil (meaning non-criminal) lawsuits. From this point of view, procedure can be seen as the etiquette of litigation, defining the initiation, development, and conclusion of a lawsuit. Where do I file my suit? What does one have to say to get a court to pay attention? From whom may a person with a grievance seek relief? What kind of relief is possible? If I believe my adversary has information that would help me to develop my case, may I demand it? All these questions—involving what lawyers call jurisdiction, pleading, joinder, remedies, and discovery—are part of civil procedure. The answers to such questions are important to any lawyer who needs to help a client in a lawsuit.

If procedure were no more than a set of rules about the etiquette of lawsuits, however, it would be hard to justify its place in the first-year curriculum. But procedure is more than that, as I hope our class discussion of the Honor Code scenario will make clear. Procedure mirrors our most basic notions of fairness and tries to capture our ideas about the acceptable forms of settling disputes. Thus, our emphasis in this course will always be not only on the way we have decided to construct our legal system, but the reasons we have done so. For example, if coming to a quick decision were all that mattered, we could flip coins to resolve lawsuits. We don’t flip coins, in part because solving an important dispute without reference to its merits strikes us as unfair; the decision, we believe, ought to reflect more than blind chance. On the other hand, the decisional process is itself a scarce resource. A limited amount of time and money can be invested in the resolution of any one dispute. Thus, the value of ensuring fairness must always be balanced against the cost of an elaborate procedural mechanism to do so. Our procedural system represents our provisional attempt to balance these (and other) competing interests.

Although the foregoing discussion suggests the importance of studying procedure, I should also acknowledge that it is probably the most difficult first-year course, at least in one particular respect. During most of your other courses, you will deal with questions about which you may well have intuitive responses. A promises to give B a present, but then reneges; should the law enforce the promise? Should C be liable for insulting D? May E keep a watch she finds lying on the sidewalk? May F be punished criminally for injuring G if F believed that G was about to attack him? As you will discover, most of the substantive first-year courses turn on such questions. You may well find that your first reaction differs from the law’s answer. But you will usually have some initial reaction.

Your response to procedure, however, especially at the beginning, may be quite different. Consider a procedural question: If A has already sued B for damage to A’s car in an auto collision, may A later bring a separate lawsuit to recover medical expenses incurred as a result of the same collision? Courts in different states give different answers to that question. But your first reaction to the question may be that you don’t have a reaction. Don’t worry. As we discuss such questions over the coming weeks, you will gain a clearer sense of why the answer matters and what is at stake. You will, for example, begin to recognize that if we force A to bring all her claims at once it may make for a more efficient adjudication, but it may also put pressure on parties and their lawyers to expand the size and scope of lawsuits—a result that may sometimes be undesirable.

In sum, this course has two aims. Certainly you should become acquainted with the procedural rules governing our legal system and the provisional compromises that we have struck among the various competing values at stake. But procedural law is constantly changing, and you as future lawyers will be in a position to help determine how our procedural rules develop in the future. Therefore, we will place particular emphasis on the theoretical foundations underlying our procedural system. You should consider which values you believe a legal system should protect and whether our current system adequately protects those values. After all, if a society=s dispute processing system reflects the embedded beliefs, assumptions, and imperatives of the culture, then our choices with regard to civil procedure offer a framework for considering who we are and what we deem important as a people.

CORE QUESTIONS

Throughout the course, you should be sure to consider four fundamental questions that will recur in our discussions:

o What are the various values that a procedural system should protect? Do our current rules strike the proper balance among those values?

o What does “due process” mean to you, and what is the best way to insure that people receive the process that is due?

o Why should we maintain such a complicated procedural system for resolving disputes? Why not just flip a coin?

o What observations can you make about our culture and its history based on the choices built into our system for resolving disputes?

There are four required texts. Our primary casebook will be CIVIL PROCEDURE: CASES, MATERIALS AND QUESTIONS (5th edition) by Richard Freer and Wendy Collins Perdue, and this casebook will be supplemented with a package of handouts. You are also required to obtain a copy of the FEDERAL RULES OF CIVIL PROCEDURE. I have ordered a good edition of the Rules for the bookstore to stock, but if you have access to a different published version (so long as it is a 2009 edition) that will be sufficient. Finally, we will read THE BUFFALO CREEK DISASTER by Gerald M. Stern. This is an account of a lawsuit written by one of the lawyers involved. It reads like a novel and provides a useful way of getting acquainted with the legal process. This book should be read in its entirety before the first class, and we will refer to it frequently throughout the course.

Although not required, I recommend that you read GETTING TO MAYBE: HOW TO EXCEL ON LAW SCHOOL EXAMS, by Jeremy Paul and Richard Michael Fischl. This book is far more than a study aid or a how-to manual; it is really a sophisticated (though simply presented) introduction to the legal reasoning process itself. I think you will find it useful as you dive into the world of law school. Finally, although also not required, some of you may wish to acquire Joseph Glannon’s CIVIL PROCEDURE: EXAMPLES AND EXPLANATIONS as a useful study aid.

Assignment for the First Class

We begin by trying to identify what sort of process we believe would be “due” us if we were accused of wrong-doing, such as violating a school’s Honor Code. Ask yourself what sorts of procedures you believe are necessary, what process feels fair, and why. Consider the goals you have in mind as you design the procedures. Is it important that there be a hearing? A neutral arbiter? A jury of one’s peers? An opportunity to cross-examine witnesses? And why might these procedures be important? To discover the truth? To preserve personal dignity? To level the playing field between the institution and the individual? And what about the practical difficulties one might encounter with whatever system you choose? Is it costly? Time-consuming? Do the benefits outweigh the costs?

After you have thought about the Honor Code scenario, consider the case described in THE BUFFALO CREEK DISASTER. Was it a good thing that the miners and their families resorted to a lawsuit? Or might there have been a better way to resolve the dispute? Was the time and cost expended worth it? As future lawyers, think about whether you would have wanted to represent the plaintiffs, the defendants, or neither. Was the legal process a good mechanism for uncovering the truth? Or would it have been better for the issue to have been debated in the political arena?

Finally, be sure to read the material on pp. 1-14 of the Casebook carefully. This is basic background information, to be sure, but it is absolutely essential that every first-year law student understand the nature of our federalist system, the structure of our courts, the English roots of our procedural practices, the way federal procedural rules are enacted, and so on. In the context of THE BUFFALO CREEK DISASTER, consider the plaintiffs’ preference to litigate in federal rather than state court. What is the difference between the two? Why do you think a litigant might prefer one over the other?

o THE BUFFALO CREEK DISASTER; read the entire book

o CASEBOOK, pages 1-14

o Consider and be prepared to discuss the Honor Code scenario described in the general course introduction section of this syllabus.

One more thing. Please be sure to have read through the syllabus prior to the first class. I look forward to meeting you all soon!

I have posted the first part of the course syllabus on the Blackboard site. Please review it before our first class.

Class 1: Introduction - 1-22; (Review 23-34); Existence of the Community - 564-578; Presumptions - 35-49.

Introduction; 362-373; 375-376; 413-424; Incorporation

Assignment for First Week

For our first class session, Monday, Aug. 24th, please read pages 1 – 13 in the coursebook, Bruce W. Frier & James J. White, The Modern Law of Contracts (2d ed. 2008). We will discuss Lucy v. Zehmer, p. 1, and Problem 1-1, p 13.

On Wednesday, Aug. 26th, please read pages 14 – 39 in the coursebook. We will discuss Northern Indiana Public Service Co., p. 14, Hamer v. Sidway, p. 35, and Problem 2-1, p. 39.

The assignment for the first class day is pages 1 through 23 of the casebook.

For the first class on Thursday August 20, please read Warren & Westbrook pp. 1 – 31, and do Problems 1.2 through 1.6 on pages 29-31. You will also need to review Arizona’s usury, bad check and consumer lending statutes, which are posted on this Blackboard site. You should gain a general understanding of what these acts regulate but you will not be tested on their details.

This course will be taught by doing the problems rather than case law analysis, so for the classroom discussion to be understandable and useful it is essential that you actually do the assigned problems in advance of each class.

Any questions, email me at randy_haines@azb.uscourts.gov during business hours Monday through Thursday or at rhaines@agilebroadband.com at other times.

Dear Students,

Thank you so much for your interest in this class and for your patience, as we worked to get a space large enough to accommodate the student interest. The class is open to law students and other graduate students, and there is no need to have prior coursework in Federal Indian law. The emphasis of this class is on understanding the unique relationship of Native peoples to their traditional lands, and then exploring how that relationship has been transformed by U.S. law. For the first day of class, please read pages 3-33 of the casebook (Royster and Blumm, Native American Natural Resources Law, 2nd ed.). As you read the material, you need only skim the Navajo Nation case (pp. 18-32). This opinion was overruled by a later en banc decision, which will be assigned in a subsequent class. The purpose of reading this opinion first is to understand how the legal standard can be interpreted in various ways, depending upon the values held by the court. The first class will be one that sets out the major themes of the class and the structure that we will use to explore these themes. I will go over the syllabus and course requirements on the first day. I look forward to seeing you in class on Thursday, and I am very honored to have the opportunity to work with each of you!

Prof. Tsosie

In addition, we have a make-up class scheduled for Thursday, Aug. 27 from 10:30 - 12:15 in Room 116. If you want to start that reading, the assignment is pages 3-18 in the Herrera book, and pages 125-34, 184-203, and 304-09 in the Calleros book.

The syllabus is also posted on BlackBoard, and it includes all reading assignments.

I look forward to meeting you all soon!

Class 1: Introduction - pp. 1-39

For an opening discussion, read pages 1030-53 in H, K, C & C on Admission to Practice. Consider Rule 8.4 of the ABA Model Rules of Professional Conduct (the Rules) in Gillers, Simon, & Perlman, Regulation of Lawyers (2009) ("G , S &P"), and compare DR 1-102(A) of the ABA Model Code of Professional Responsibility (the Code) in G, S &p.

Read Ch. I, pp. 1-59 in H, K, C & C and, as background, pp. xv-xxi and xxxii-xxxvi in G, S &P. Note that these assignments, as will be the case throughout the course, include studying the relevant portions of the Rules (in G, S &P) referred to in the materials.

N.B.: This is the first assignment, which does not mean that it all will be covered in the first class. I do hope, however, to move through the opening discussion referred to above, and some introductory remarks, and into a discussion of Spaulding v. Zimmerman (H, K, C & C, p. 3) and its related materials and then Commonwealth v. Stenhach (H, K, C & C, p. 27) the first week of classes.

PLEASE NOTE: class attendance is mandatory.

In advance of the first class (August 24, 2009), each student should obtain a copy of the class text book and reading materials binder.

• The text for the introductory business appraisal portions of the class is Shannon Pratt, The Lawyer’s Business Valuation Handbook (American Bar Ass’n 2000) (soft cover). The text should be purchased in advance of the first class.

• All other class materials (cases, articles, etc.) have been reproduced for you (at no charge by the Mariscal, Weeks, McIntyre, Friedlander, P.A. law firm) and assembled in a binder for your use during the course of the term. Each student registered for the class should obtain a notebook from Lorraine Feeney in the Dean’s Office (Room 201) at the Law School, in advance of the first class. Materials should be available on or before August 18, 2008.

First Class Assignment

In advance of the first class, please read Chapter 1 of The Lawyer’s Business Valuation Handbook textbook (pp. 3-19).

Subsequent Class Assignments

For students who wish to read in advance of class, a general outline of the course appears in the class materials binder. We will first briefly address the concept of “value” and other key terms such as “highest and best use,” “larger parcel theory” and “severance damages,” and then focus upon the admissibility of expert evidence and the appraisal of interests in real estate. All future reading assignments appear in the class materials binder and will be electronically posted as well. Accordingly, after the initial class, you may elect to read the materials at your own pace or at the pace suggested during class. Any questions regarding class materials or reading assignments should be directed to the instructor by phone or e-mail. (602-285-5009–Gary.Birnbaum@mwmf.com) or please feel free to visit in person at the Associate Dean’s Office.

One cautionary note: There may be occasions when a class will cover somewhat more or less than the materials assigned for that day. In all events, however, the instructor will endeavor to cover the assigned materials in the order presented on the reading assignment list.

Assignment for First Class

For our first class, Thursday, Aug. 20th, please read pages 27 – 60 in the coursebook, John O. Honnold & Curtis R. Reitz, Sales Transactions: Domestic & International Law (3rd ed. 2006). Be prepared to discuss the BMC Industries case, p. 29, and the Advent Systems Limited case, p. 44. Review the relevant UCC provisions in the statutory pamphlet.

The introductory chapter in the coursebook, pp. 2 – 23, contains useful background information about commercial law and its development domestically and internationally. Read this chapter for general information sometime during the first two weeks of the course.

I look forward to seeing you then.

Read for background Chapter I (pp. 1-30) of the main text: M. Franklin, R. Rabin, & M. Green, Tort Law and Alternatives - Cases & Materials (8th ed. 2006).

Read also in this text Chapter II, pp. 31- 39. We will begin the class discussion with the case of Brown v. Kendall, 6 Cush. (60 Mass.) 292 (1850) at p. 35.

The assignment for the first week of class (week of August 20) in the anthology, Saul Levmore and Catherine M. Sharkey, Foundations of Tort Law (2d ed. 2009), is to read the Preface and the following excerpt:

Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (1970) ( pp. 1-12).

I look forward to meeting you on Tuesday, August 25. If you have questions before then, please call or e-mail me.

Assume that you are a young trial attorney assigned to second chair the trial of the Pappas v. Wheelock case on behalf of the plaintiff. [Case file A-6 of the Text] Draft a case evaluation memorandum for the lead trial attorney not to exceed 5 pages. The memorandum should address, among other items, your proposed theory of the case and reasons why, as well as your proposed case theme and reasons why.

In addition, be prepared to discuss in class the ethical considerations raised in Section 3.5 of the Text.