Call For Papers: A Critical Guide To Civil Procedure

Call For Papers:

A Critical Guide to Civil Procedure

Call for Papers

Boston University School of Law (host; co-sponsors Seattle University and University of Washington)

Workshop Date: Wednesday, May 8, 2019

Abstract Deadline: March 15, 2019

Convenors: Portia Pedro, Brooke Coleman, Suzette Malveaux, & Elizabeth Porter

Civil Procedure is not a technocratic, neutral area of study, yet there is no collection of civil procedural scholarship engaging perspectives at the margins. In this workshop, we will discuss these perspectives. The workshop will support a book project that the convenors are editing.

The idea for the book project is to create a critical reference guide for the core civ pro concepts students learn every year. We envision a collection of essays - loosely keyed to traditional textbook topics - that reveal the relationship between civil procedural rules/doctrines and race, gender, sexual orientation, national origin, class, and disability. In addition to basic civil procedure concepts like pleading, jurisdiction, discovery, and aggregate litigation, we hope to include a critical analysis of related topics such as rulemaking institutions, arbitration, and remedies.

This workshop will include authors who have already agreed to contribute to this book project, but we also want to bring in more voices. At the workshop, contributors will discuss a five-page precis of their essay (precis are to be submitted in advance of the workshop). The final essays should be roughly 10,000 words, including footnotes. (Essays should not include “Part I” basic background, but should center on the author’s critical analysis.) The essays for the book project are due by August 1, 2019.

If you are interested in participating in the workshop and contributing to the book, please submit an abstract and author biography (no longer than 500 words each) by March 15, 2019 to critcivpro@gmail.com. We will select papers by April 1, 2019.

The workshop will provide meals for contributors. Contributors must cover travel and lodging costs. Information about reasonably-priced hotels will be provided as the date approaches.  

Financial Assistance: Convenors may allocate limited funds to help cover partial travel expenses or accommodations for a small number of selected participants. If you wish to be considered for financial assistance, please submit a separate written request, specifying your city of departure and an estimate of travel costs, along with your abstract submission. We regret in advance that we are unable to provide full financial assistance to participants. Feel free to contact us with any questions.

Brooke Coleman (colemanb@seattleu.edu)

Suzette Malveaux (suzette.malveaux@colorado.edu)

Portia Pedro (ppedro@bu.edu)

Elizabeth Porter (egporter@uw.edu)

Suzette Malveaux

Provost Professor of Civil Rights Law

Director, Byron R. White Center for the Study of American Constitutional Law

University of Colorado

Frye on the Ballard of Harry James Tomkins @brianlfrye

Brian L. Frye, University of Kentucky College of Law, is publishing The Ballad of Harry James Tompkins in the Akron Law Review. Here is the abstract.

On July 27, 1934, Harry James Tompkins lost his arm, supposedly when an unsecured refrigerator car door on a train operated by the Erie Railroad Company hit him in the head. Tompkins won in a $30,000 judgment in federal court, but in Erie v. Tompkins (1938), the United States Supreme Court famously reversed, holding that federal courts sitting in diversity must apply state substantive law, not federal "general common law." While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins's account. This article argues that Tompkins and his witnesses were not telling the truth.

Download the article from SSRN at the link.

Meyn on Why Civil and Criminal Procedure Are So Different: A Forgotten History @WisconsinLaw

Ion Meyn, University of Wisconsin Law School, has published Why Civil and Criminal Procedure Are So Different: A Forgotten History at 86 Fordham Law Review 697 (2017). Here is the abstract.

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure — confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The contents of this draft shed light on an extraordinary moment: reformers initially proposed that all litigation in the United States, civil and criminal, be governed by a unified procedural code. The implementation of this original vision of a unified code would have had dramatic implications for how criminal law is practiced and perceived today. The advisory committee’s final product in 1944, however, set criminal litigation on a very different course. Transcripts of the committee’s initial meetings reveal that the final code of criminal procedure emerged from the clash of ideas presented by two committee members, James Robinson and Alexander Holtzoff. Holtzoff’s traditional views would ultimately persuade other members, cleaving criminal procedure from civil procedure. Since then, differences in civil and criminal litigation have become entrenched and normalized. Yet, at the time the Federal Rules of Criminal Procedure were drafted, a unified code was not just a plausible alternative but the only proposal. The draft’s challenge to the prevailing notion that civil and criminal wrongs inherently require different procedural treatment is a critical contribution to the growing debate over whether the absence of discovery in criminal procedure is justified in light of discovery tools afforded by civil procedure. The first draft of criminal procedure, which called for uniform rules to govern proceedings in all civil and criminal courtrooms, suggests the possibility that current resistance to unification is, to a significant degree, historically contingent.

Download the article from SSRN at the link.

Legal Time

Frederic Bloom, University of Colorado Law School and Brooklyn Law School, is publishing The Law's Clock in volume 104 of the Georgetown Law Journal (2015). Here is the abstract.

Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type — the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time’s revealing past to our messy doctrinal present — first by compiling an initial doctrinal tally, then by sorting the doctrine into a novel time typology. This typology splits into three core categories — all time, some time, and broken time — and it brings analytical coherence to a concept too-long ignored. Even more, it sketches a blueprint for worthwhile reform. This Article proposes four such reforms — to Hicks v. Miranda, to mootness and desuetude, to retroactivity doctrine, and to Federal Rule of Civil Procedure 60(b) — and it rethinks the courts’ most enduring time commitments. It also builds the foundation for what is to come, opening a discussion about time as a legal technology, arguing for a more critical investigation of the law’s clock.

Download the article from SSRN at the link.

Pre-Modern Civil Procedure

David L. Noll, Rutgers, The State University of New Jersey, School of Law-Newark, has published A Reader's Guide to Pre-Modern Procedure. Here is the abstract.

This short essay fills a minor but consequential gap in the civil procedure literature. Many sources describe the general badness of procedural systems that predated the Federal Rules of Civil Procedure but few describe how those systems actually worked. This essay — intended as a reference for law students, law professors, and anyone else required to read and make sense of archaic judicial opinions — does just that. 

Download the paper from SSRN at the link.

Harry Potter and the First Year Curriculum

Nancy J.White, Central Michigan University, has published Harry Potter and the Denial of Due Process. Here is the abstract.

This paper is designed to be used to teach students the concept of due process using the book/move Harry Potter and the Order of the Phoenix. It contains an overview of due process and examples using due process violations from the book.

Download the paper from SSRN at the link.