Civil Procedure: What is it?
Civil Procedure deals with procedure, not substance. Civil Procedure focuses on rules. Civil Procedure is the study of the principles surrounding the resolution of civil disputes by the courts and the various tools available to a lawyer who must bring or defend a lawsuit. FRCP Rule 1 – The rules are meant to ensure just, speedy, and inexpensive lawsuits. “Fair, fast, and cheap.”
Fairman says that it’s all a balancing test between efficiency and equity. We want to do things cheaply, yet fairly. There are elements of this balance either explicitly in the courts’ opinions or the statutes that courts apply or embedded in the decisions that have to be made.
The five themes
Judicial power – Who has it? What courts have power to adjudicate disputes (i.e. jurisdiction)?
Dispute parameters – How do we take big cases and winnow them down into what’s actually going to get tried, if they get tried? The tools of setting these parameters are all procedural.
Obtaining finality – The more that happens to a lawsuit in different courts, the harder it is to undo.
Costs – Every lawsuit has its costs, monetary or non-monetary.
Balance between equity and efficiency – cheap & quick and fair are at odds. We can have more of one or more of the other…we need to make tradeoffs.
The five pedagogical objectives
Identify and apply “Black Letter” procedural rules – some rules is rules (c.f. FRCP Rule 8). Know them.
Determine the doctrinal and policy implications of the rules.
Understand the theoretical implications of the rules. We want to find truth, if there is a truth. We let them sue now, and find truth later.
Develop a critical perspective: how do we limit frivolous lawsuits?
Skill: be able to read cases critically for procedural issues. In this course, we’re concerned with procedure and not substance.
Personal jurisdiction
Pennoyer v. Neff – When does a state have appropriate jurisdiction over an out-of-state defendant? Pennoyer asks: Is it there? Pennoyer introduces three basic concepts that are still important today: (1) Power – jurisdiction is power, and the power of states or other jurisdictions (federal courts) to make you do what you might otherwise not do; plus limits to that power imposed by the Constitution itself. (2) Consent – If you consent to jurisdiction, these black and white rules go out the window. (3) Notice – the “concealed” strand of Pennoyer. This will eventually become a constitutional requirement. At the time of Pennoyer, we have sort of a duality of notice. For in personam jurisdiction, you need personal service of process within the state. For in rem or quasi i
get his money back from Epstein. What must the jurisdictional issues be? North Carolina, the Supreme Court rules, must enforce the Maryland judgment, because personal jurisdiction was obtained over Balk when Harris entered Maryland.
We’re trying to figure out if debts are a personal obligation or in rem obligations. The Court says that the debt travels with the debtor, making the creditor subject to personal jurisdiction wherever the debtor goes. If one is a creditor, that sucks because if you lend people money, and then you’re subject to personal jurisdiction wherever that person goes, and thus you might get sued anywhere that debtor goes. I, the creditor, am in big trouble!
Hess v. Pawloski – An out-of-state defendant gets into an accident. In order for the person who got hit in Massachusetts to sue, they must serve the person that hit them personally in Massachusetts. So, Massachusetts passes a statute that says that when you drive on Massachusetts roads, you implicitly consent to Massachusetts jurisdiction. This case would be decided the same way today.
