Edited By

KEVIN M. CLERMONT

Flanagan Professor of Law, Cornell Law School

FOUNDATION PRESS

CIVIL PROCEDURE STORIES

FOUNDATION PRESS New York, New York 2004

THOMSON

*

VVEST

Foundation Press, a Thomson business, has created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed t~ practice law in a particular jurisdiction. Foundation Press is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the adv!ce of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

© 2004 By FOUNDATION PRESS 395 Hudson Street New York, NY 10014

Phone Toll Free 1--877--888-1330 Fax (212) 367-£799

fdpress.com

Printed in the United States of America

ISBN 1-58778-723-7

I:i)t,. TEXT IS PRINTED ON 10% POST 'l:I CONSUMER RECYCLED PAPER

KF

CIVIL PROCEDURE STORIES

Introduction Civil Procedure Archaeology .

Kevin M. Clermont

Part I: Forum

Chapter 1 Governing law-The Story of Erie: How Litigants, Lawyers, Judges, Politics, and Social Change

Reshape the Law ..

Edward A. Purcell, Jr.

Chapter 2 Subject- matter jurisdiction-The Story of Owen Equipment v. Kroger: A Change in the Weather of

Federal Jurisdiction .

John B. Oakley

Chapter 3 Territorial jurisdiction-The Story of Shaffer:

Allocating Jurisdictional Authority Among

the States .

Wendy Collins Perdue

Chapter 4 Procedural due process-The Story of Connecticut v.

Doehr: Balancing Costs and Benefits in Defining

Procedural Rights .

Robert G. Bone

Chapter 5 Venue-The Story of Piper: Fracturing the Foundation

of Forum Non Conveniens .

Kevin M. Clermont

Part II: Pretrial

Chapter 6. Parties-The Story of Hansberry: The Foundation

for Modern Class Actions .

Jay Tidmarsh

Chapter 7 Pleadings-The Story of Conley: Precedent by

Accident .

Emily Sherwin

Chapter 8 Discovery-The Story of Hickman: Preserving Adversarial Incentives While Embracing Broad

Discovery .

Richard L. Marcus

iii

1

21

75

129

153

193

217

281

307

IV

Contents

Chapter 9 Motions-The Story of Celotex: The Role of Summary

Judgment in the Administration of Civil Justice ..... 343

David L. Shapiro

Part III: Trial

Chapter 10 Jury-The Story of Colgrove: Social Science on Trial 371

Jeffrey J. Rachlinski

Part IV: Judgment

Chapter 11 Res iudicata- The Story of Parklane: The "Litigation

Crisis" and the Efficiency Imperative..................... 387

Lewis A. Grossman

Chapter 12 Recognition and enforcement-The Story of Hilton:

From Gloves to Globalization.................................. 427

Louise Ellen Teitz

Part V: System

Chapter 13 Adjudicatory The Story of Goldberg: Why This

Case Is Our Shorthand.............. 455

Judith Resnik

Chapter 14 Adversarial-The Story of Lassiter: The Importance

of Counsel in an Adversary System........................ 489

Elizabeth G. Thornburg

Biographies of Civil Procedure Stories Contributors 529

FOUNDATION PRESS

CIVIL PROCEDURE STORIES

(There is an accompanying website, http://civprostories.law.comell.edu, which can serve as a research tool for students, academics, and practitioners. The posted materials, which will also appear on the West Education Network (TWEN) site accessible from http://www.lawschool.westlaw.com. comprise briefs,

opinions, and other items.)

*

v

Introduction

Kevin M. Clermont

Civil Procedure Archaeology

On studying law cases, it has been said that "we need, like archaeologists, gently to free these fragments from the overburden of legal dogmatics, and try, by relating them to the evidence, which has to be sought outside the law library, to make sense of them as events in history and incidents in the evolution of the law."! But why? Why do the authors of this book bother to undertake this challenging archaeological task? Why should you bother to read this book on legal archaeology?

Well, anyone who has ever studied these particular civil procedure cases will find their treatment in this book fascinating. That is a certainty, yet it might strike some as an insufficiently practical reason to bother.

A practical reason is not to uncover the cases' "true meaning" in the sense of discovering new facts or circumstances that revolutionize how we read the cases. Sometimes advocates do that to distinguish and so undermine a troublesome precedent. But that is in large part a lawyer's trick to mislead the court. Given our system of stare decisis, courts have to take precedents pretty much at face value. How the deciding court stated and understood the facts and circumstances fixes the context for deciphering the holding.

Now, it is true that considering the case's social and legal background and investigating its facts fully will help you to understand more truly what the opinion says an(what it meant. The writers and readers of this book's case studies achieve a much better understanding of the cases. But a good treatise could do much the same, working more quickly albeit less effectively to impart the "true meaning" in this limited sense. Accordingly, interpretation is not the central aim of this book either.

No, the aim of this book is pedagogic, in the broad sense. Slowly reconsidering landmark cases in depth helps one to learn the law, and its process and values, most effectively. It is the most effective way, but not

! A.W. Brian Simpson, Leading Cases in the Common Law 12 (1995).

I ---

2

INTRODUCTION

a common way. It does not always mesh with today's teaching or learning styles. Today we give too little attention to the landmark cases. Instead of savoring these choice morsels, we gulp them down.

The incentives to rush through the landmark cases of civil procedure are manifold. Law students obviously have lots else to read and do, and so feel the need to rush onward. Meanwhile, teachers all feel the pressure to achieve coverage, as civil procedure especially is a rich and broad subject. Moreover, they want to get to the latest doctrinal wrinkle, which absorbs their current interest. Or they want to reach today's hot topics, those that matter in the real world. Or they want to expound the latest insightful theory.

Most teachers understand rationally, at least, that surrendering to such temptations is not the path to good teaching, and so they should be able to resist them. But still they rush through the great cases. The reason, I think, is that something more subtle and powerful propels them. My recently developed belief is that because we teachers think that we understand our own subject, we beneficently incline to share our understanding of the big picture with our students. Individual cases are just points in our big picture. We want to convey the overall vision of that pointillist picture, not merely the cases themselves. That natural inclination to share our vision is almost irresistible, but it can maim good teaching.

It is true enough that teaching the same subject for a number of years will produce expertise, in the sense of highly structured knowledge. Psychologists call each structured subunit of that general structure a schema.! We teachers have slowly built an impressive set of schemata of civil procedure by reading cases and studying theory, by analogizing from related schemata, and by reflecting on the actual construction of each schema. Our schemata allow us easily to incorporate new information. They also facilitate solving new problems of doctrinal analysis, permitting us both to explain and to predict outcomes with relative ease and effectiveness. They make it much easier to answer students' questions, but also much more tempting to conveyor inflict our structured views in oral debate or in published work.

Although this feeling of mastery is probably realistic as well as undeniably satisfying, it can negatively affect teaching. Knowledge is the root of some evil in teaching. Things seem clear to us, so we try to explain them. We shoot past the landmarks quickly, in order to cover the subsequent developments and to sketch the big picture. We try, in short, to convey our schemata. What we tend to forget is that law students are in class mainly to build their own schemata." Truly learning law is not a

2 See Susan T. Fiske & Shelley E. Taylor, Social Cognition 98 (2d ed. 1991).

3 See Richard John Stapleton & Deborah C. Stapleton, Teaching Business Using the Case Method and Transactional Analysis: A Constructivist Approach, 28 Transactional

KEVIN M. CLERMONT

3

process of receiving the other's understanding; it is rather a process of creating one's own understanding.

How do novices build schemata? Most often they begin by studying exemplars. They connect and organize the exemplars into a structure by the process of induction. Other mental processes can later refine this schema, but the beginning is critical. The students' focus should be on fundamentals, not on filigree.

As is already evident, my thesis that civil procedure study gives too little attention to the landmark cases, although a simple thesis, requires first a bit of background drawn from cognitive scientists on schema theory in the abstract, and then a little elaboration of its pedagogic implications for law schools. I can then turn to how this book addresses my thesis.

Schemata

The "major accomplishment of cognitive science has been the clear demonstration of the validity of positing a level of mental representation."! Although disputes persist as to details and even as to terminology, wide agreement prevails on the existence of what many call schemata. These structures in memory embody knowledge, whether about a stimulus or a concept, including its attributes and the relationships among these attributes. These schemata organize the world for the person, while telling the person which new inputs to seek out or to focus on and which to ignore."

Data-driven, bottom-up processes allow the person actively to construct a schema from exemplars encountered. More general information, analogies, and metacognition help the person to elaborate the schema, by making connections multidimensionally and even generating idealized

Analysis J. 157, 157 (1998) ("The case can be made that schema change is at the root of significant learning," with schema change necessarily performed by the students themselves, and with learning defined as a persisting change in disposition or capability that is not merely ascribable to processes of growth.).

4 Howard Gardner, The Mind's New Science: A History of the Cognitive Revolution 383 (1985). It is safer to stick to mainstream views as one ventures outside one's field. But see John Batt, Law, Science, and Narrative: Reflections on Brain Science, Electronic Media, Story, and Law Learning, 40 J. Legal Educ. 19 (1990) (invoking curious psychological theories to argue that legal pedagogy should set aside "bite" -oriented casebooks in favor of riveting narrative, especially electronic narrative, in order to attain brain stimulation and learning).

5 See Fiske & Taylor, supra note 2, at 98. For an instructive application of schema theory to the law, see Gregory S. Alexander, A Cognitive Theory of Fiduciary Relationships, 85 Cornell L. Rev. 767 (2000) (stressing the negative effects of schemata on inference and explanation) .

II,~

'Ii

4

INTRODUCTION

prototypes. As learning progresses, the schema becomes more complex but also more tightly organized, and hence more usable. Furthermore, people arrange their individual schemata into a useful hierarchical pyramid that can embody complexified knowledge, with the more inclusive schemata generally being higher in the hierarchy."

Schemata are in constant use mentally. When a person processes data from the world, the existing schemata affect encoding, as the data fit into the appropriate niche. Schemata affect recall, as people tend to forget schema-irrelevant information and must have made a special processing effort in order later to remember schema-inconsistent information. A person uses the appropriate schema to generate inferences where information is missing or, more generally, to engage in any theory-driven, top-down processes."

More disagreement persists about how people use their schemata to categorize and solve problems. But psychologists agree that what separates experts from novices is the quality of their schemata, whether the expert is a chess grandmaster or a law teacher. In addressing a new problem, the expert does not retrieve all the details of past games or cases, but rather the appropriate schema extracted from them. That schema, in one way or another, then generates a solution, such as a chess or legal move."

In any event, schemata are critical to converting novices into experts, so teachers are well-advised to attend to their students' schemabuilding. Induction is a basic mental process in this task. Teachers need therefore to provide students with well-selected exemplars, encouraging them to examine thoroughly these prime exemplars from many different angles. A long string of half-comprehended exemplars likely produces a shakier foundation than a shorter series of well-pondered exemplars. "The case method is essentially a constructivist learning approach. "9

Of course, provision of exemplars is only the beginning of the teaching process. Research indicates that better schemata result if the teacher directs the students' building process, by providing some theory that reveals connectedness and by suggesting source analogies. More-

6 See Fiske & Taylor, supra note 2, at 98-99,105-07,115-16,147-49. 7 See id. at 121-39.

8 See Gary L. Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. Legal Educ. 313, 335, 338 (1995). For a nostalgic view of lawyers' use of schemata generated by a case method, see Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (1993), reviewed by Gail Heriot, Songs of Experience, 81 Va. L. Rev. 1721, 1725 (1995), and R. George Wright, Whose Phronesis? Which Phronimoi?: A Response to Dean Kronman on Law School Education, 26 Cumbo L. Rev. 817, 828-34 (1996).

9 Stapleton & Stapleton, supra note 3, at 159 (citations omitted).

KEVIN M. CLERMONT

5

over, research indicates that better schemata result if the student is actively involv~d ~n search~ng out. s?urce analogies and in thinking about the schema-building, PaSSIve recipients of unconnected and two-dimension~ information flounder, while directed and active students flourish. The mvolv~d stu~ent~ build ~ sound schema, and only later they add most of their detailed information to it."

. Unfortunately, then, there is no way directly to transplant a brilha~t schema. All the. teacher can do is encourage and guide students in their own schema-building. As one law teacher summed up this cognitive understanding:

Mos~ experienced law teachers have independently arrived, at least ta?Itly, at the result suggested by these experiments .... And our resistance to pleas of "just give us the rules" springs from a sense of how people learn, rather than mere sadism. It is the active process of comparing and contrasting appellate cases dealing with complex concepts that leads to an understanding of those concepts on a. l~vel deeper than one can get to from the propositional exposIt!?n of the hornbook or course outline. Langdell's "legal sCIenc.e stands on fir~ ground in human cognition and learning, at least mso~ar as la~ermg ~ntails understanding doctrinal concepts and applying them m new situations .... 11

Pedagogy

. The law school~' case I?ethod is wonderfully suited to this challengmg process of teachmg baSIC law courses in common-law countries. It is of course, a remarkably inefficient and ineffective way to convey information." But it squarely addresses the primary task of students' schemabuilding. From its U.S. beginnings in 1870, the case method has been atta,~ked-:-foolishly for yielding obscurity, somewhat more insightfully for call[mg] upon the student to produce a synthesis that only experts could properly produce."13 Precisely! "Rather than monologically telling

10 See Blasi, supra note 8, at 336 n.53, 358-61, 386-87.

11 Id. at 359. Earlier roots in England of the case method may have rested less on a theory of legal science and more on a sense of human learning. The first casebook editor extol~e.d. the value to the student "of early mastering, as so many nuclei of future legal aC~~lsltJons, a few of the 'leading cases' in the Law Reports." Samuel Warren, Miscellanies Critical, Imaginative, and Juridical Contributed to Blackwood's Magazine 73 (London Blac~wood 1855), reprinted in 5 Works of Samuel Warren 73 (London, Blackwood 1855); see Simpson, supra note 1, at 5.

12 See Karl N. Llewellyn, The Current Crisis in Legal Education, 1 J. Legal Educ. 211 ~~5 (1~48). ("For i~ is obvious t.hat man could hardly devise a more wasteful method of parting information. about subject matter than the case-class. Certainly man never has.").

13 Paul F. Teich, Research on American Law Teaching: Is There a Case Against the Case S~stem?, 36 J. Legal Educ. 167, 109-10 (1986) (citing Leslie J. Tompkins, The Lawyer s Education, 15 Am. Law. 4..2,3 (1907».

~-------------- --------------------------------------------------

Ilf

I

III11

6

INTRODUCTION

I

I"

students what they need to know for tests based on the teacher's personal schemata, case method teachers colearn and coconstruct 'reality' with students in a dialectical, dialogical process. "14

Now, my position here is a modest one really. Unlike Dean Langdell, I am not claiming that the case method is the only way to teach law or even the best way." Other methods of group instruction that stress active learning seem to be as effective;" the case method does flag in the upperclass years;'? it is not effective for teaching many of the skills that a lawyer needs to master." Nor do I claim that law courses should teach doctrinally focused schema-building and nothing else. Much else goes on. Nevertheless, the fact remains that the case method is the dominant teaching method for basic civil procedure, which still deals heavily with doctrine. So, I maintain merely that if we try to use the case method, we should do it as well as we can.

Yet teachers and students do not employ the case method as well as they can. Various and nefarious incentives degrade the classroom style from interactive engagement (whether Socratic or otherwise) toward more of a lecture approach (whether high-tech or otherwise)." So too do the aforementioned desires for speedy coverage and knowledge sharing degrade the approach to the casebook, descending from a true case method toward use of the book as a rather unclear treatise. These classroom and casebook approaches combine to impede the students' schema-building, by diluting the exemplars' power and by inducing passivity in the students. As another law teacher put it:

Some professors use the case method to teach the rules of law: they go through a casebook by asking for the facts and holding of a

14 Stapleton & Stapleton, supra note 3, at 160 (discussing business-school case method).

I

II

15 See C.C. Langdell, A Selection of Cases on the Law of Contracts at vi (Boston, Little, Brown 1871).

16 See Teich, supra note 13, at 168-69, 185. It is perhaps worth noting that some of the modern methods alternative to the case method-such as narrative, simulation, and problem methods-share the feature of an elaborated exemplar with the "enriched case method" that I advocate. See, e.g., Douglas L. Leslie, How Not to Teach Contracts, and Any Other Course: PowerPoint, Laptops, and the CaseFile Method, 44 St. Louis U. L.J. 1289, 1306-13 (2000) (describing a method that employs for each class period a different case file, consisting of a fictional fact pattern, a selection of authorities, and a law firm partner's assignment to an associate).

17 See Roger C. Cramton, The Current State of the Law Curriculum, 32 J. Legal Educ. 321, 328 (1982).

18 See Nancy L. Schultz, How Do Lawyers Really Think?, 42 J. Legal Educ. 57, 58-59 (1992).

19 See David M. Becker, Some Concerns About the Future of Legal Education, 51 J.

Legal Educ. 469 (2001); Leslie, supra note 16, at 1295-306.

KEVIN M. CLERMONT

7

case, and making sure the students understand the holding. Then it's on to the next case. Langdell might well cry out (while turning over in his grave): "Stop! If that is all you're doing, go back to using textbooks and lectures. They explain the rules more clearly, accurately, and quickly than cases do. Just find a good hornbook and read it to your students.'?"

Teachers and students need to adhere more closely to a purer case method, which might be called the enriched case method. The essence is studying a slightly smaller number of cases and pausing on the key ones, thoroughly examining them in a rich context. The benefits of the enriched case method would be numerous. For example, studying a case carefully, critically, and actively teaches best that fundamental skill of how to "read a case." Most importantly, it provides the best raw materials for schema-building. By building and then applying those schemata, the student learns what a lawyer needs to know and how to use that knowledge in order to "think like a lawyer."

Although I view improved schema-building as a sufficient justification for the enriched case method, other benefits would flow from elaborating an otherwise acontextual presentation of a case. A thorough reading of the facts and proceedings shows the law in action, along with its various actors (and especially lawyers) likewise in action;" it helps students to understand the legal process, as to both dispute-processing and lawmaking;" it instructs on what the law values, and what the law does not value;" and, at the same time, it humanizes the law, showing the roles people play in creating law and the effects law has on people's

20 Myron Moskovitz, Beyond the Case Method: It's Time to Teach with Problems, 42 J.

Legal Educ. 241, 244 (1992) (footnote omitted).

21 See Jerome Frank, Why Not a Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 916 (1933) ("The case-system should be revised so that it will in truth and fact become a casesystem and not a mere sham case-system .... But the study of cases which will lead to some small measure of real understanding of how cases are won, lost and decided, should be based to a marked extent on reading and analysis of complete records of cases .... It is absurd that we should continue to call an upper court opinion a case. It is at most an adjunct to the final step in a case (i.e., an essay published by an upper court in justification of its decision)."); Robert A. Hillman, Enriching Case Reports, 44 St. Louis U. L.J. 1197, 1197 (2000) ("Judicial opinions in contract matters often fail to reflect the intricacies of a dispute, the nuances of the lawyer's strategies in court and the general realities of litigation."); id. at 1204 ("the study of actual contracts helps demonstrate that law consists of more than enactments of officials in power").

22 See Judith L. Maute, Response: The Values of Legal Archaeology, 2000 Utah L. Rev. 223, 223 ("Historical reconstruction is invaluable to understanding legal processes .... ").

23 See Joan Vogel, Cases in Context: Lake Champlain Wars, Gentrification and Ploofv.

Putnam, 45 St. Louis U. L.J. 791, 795-97 (2001) (discussing use of case studies to introduce the outsider perspective).

~l:

,I

J

8

INTRODUCTION

lives." Putting the case into its socio-economic-political context can illuminate the reasons for a judicial decision and its truer meaning, while simultaneously attuning the students to the importance of viewing the law from the perspectives of many different academic disciplines.f All these benefits are not a bad payoff for a method that incidentally makes the course more interesting and even more fun for teacher and students. (N ote that these benefits of context do not depend on commitment to some sort of deconstructionist jurisprudence.)

This variety of pedagogic and intellectual benefits explains the recent burst of attention to the genre of classic-case studies," with many appearing in collections and symposia in various subject areas (other than civil procedurel.f" Scholars have produced or are in the process of producing the necessary raw materials. But how should one incorporate these products of legal archaeology into one's course? A variety of possible ways to pursue the enriched case method suggest themselves.

Enriched Casebooks. One could rely on one's chosen casebook to incorporate the contextual materials. Some casebooks commendably include such materials for certain cases. Most notably, the new Fiss & Resnik coursebook" provides delightfully detailed coverage of several of its major cases, including, for example, Goldberg v. Kelly29 as the book's introductory case. They have the right idea. But the result, naturally enough, is lengthy coverage. Moreover, as a general matter, casebook elaboration inevitably constrains a user, who cannot so easily pick which

24 See John T. Noonan, Jr., Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks at xi (1976); Carrie Menkel-Meadow, Foreword-Telling Stories in School: Using Case Studies and Stories to Teach Legal Ethics, 69 Fordham L. Rev. 787, 788, 793 (2000). As a former student put it in a recent e-mail to me: "I remember one story in particular that you told in class [Erie] that affected me. Somehow the way you told it made the importance of civil procedure hit home for me-I remember thinking what bad luck for this poor guy that they happened to decide this rule in his case. Then when you told us no one could ever find him again I imagined the loss of that judgment must have ruined his life, leaving him homeless and wandering or some such thing. Of course I am embellishing the story a bit. But I do think the stories behind the rules help us understand the impact."

25 See Vogel, supra note 23, at 792-95.

26 See Debora L. T,hreedy, A Fish Story: Alaska Packers' Association v. Domenico, 2000 Utah L. Rev. 185, 186-87.

27 E.g., Simpson, supra note 1; Symposium, Case Studies in Legal Ethics, 69 Fordham L. Rev. 787-1203 (2000); Symposium, Teaching Contracts, 44 St. Louis U. L.J. 1195, 1443- 533 (2000); Symposium, 2000 Utah L. Rev. 183-303. The interest seems to have recently increased, but the interest is not new. See, e.g., Richard Danzig, The Capability Problem in Contract Law: Further Readings on Well-Known Cases (1978); Noonan, supra note 24.

28 Owen M. Fiss & Judith Resnik, Adjudication and Its Alternatives (2003). 29397 U.S. 254 (1970), treated in Fiss & Resnik, supra note 28, at 54-115.

KEVIN M. CLERMONT

9

ca~es to paus~ ?n ~n a leisurely manner and which to pass through quickly, Selectivity IS a necessary aspect of the enriched case method.

At any rate, one cannot expect many other casebook editors to rush to assist in one's pursuit of the enriched case method. Casebook editors have regrettably powerful reasons not to fill the need. Case studies entail a lot of work to prepare. They add many pages to a casebook, and fear of length ~lagues. eve~ casebook editor. They provide little professional r~war~ If published m a new edition of a going casebook. Indeed, they risk al~enatmg prIO: users of the casebook, who might not want to spend class time on pursumg the particular cases elaborated.

. This is not to say that casebook editors will not, or should not, take mmor steps toward enriching their presentation of cases. A little case back~ound ~nd follow-up go a long way in making the presentation wore mterestmg and more effective. A productive route in that direction was recently ma?ped by Professor Robert A. Hillman, who suggested that casebook editors contact the lawyers who litigated the more recent cases included in their casebook, asking the lawyers to share material from their ~ase files." This practice would facilitate introducing into the casebook excerpts of briefs and other court documents as well as the

lawyers' letters and other work product. '

Incident~lly, proposing improvements of this sort is not a dig at casebook editors for their close editing of cases." Some teachers do complain that the cases in modern casebooks are too closely edited so ~hat their st~dents get neither the full flavor of the opinions nor, U:ore lI~port~ntly m these teachers' view, the experience of reading and dIss~ctmg cases in their native state. Yet casebook pages are just too precioug to expend on loose editing. In the first place, assignments can be only so long before exhausting students' diligence and patience. ~oreover, students' pre-class preparation should comprise focused work. Finally, loose editing accomplishes little: it does not directly serve the pur~ose of schema-building, which calls for the addition of relevant detail and perspective, not for additional irrelevancies; nor is it essential t~ stu~ents' training, because they should get plenty of practice in

dIssectmg unedited cases elsewhere in their law-school experience. .

r 30 _Hillman, su?ra note. 21 (describing his contracts casebook). Another interesting ;~te IS. th~ teachmg technique proposed by Patricia D. White, Afterword and Response:

at Dlggmg Does and Does Not Do, 2000 Utah L. Rev. 301 302-03 (assigning her firstyear tort students to pick a case and prepare a full case stud; covering the record and the context).

th 31 I would be more prepared to criticize the editorial practice of adding after cases all 03~se countless, cryptic notes on vaguely related issues. See Leslie, supra note 16, at 1300-

I' II·

III III

10

INTRODUCTION

Parallel Case. The more reliable route to follow, then, is to supplement the chosen casebook. Some teachers create their own running exemplar from a real or imagined case, providing a fact pattern and sample documents and referring to the case throughout the course." Many more teachers use one of the excellent paperback books that similarly provide a single case as an illustrative long-term parallel." Two recent ones, for superb examples, employ A Civil Actioni" and President Clinton's sex litigation."

Such a supplementary approach can be very productive for certain purposes. I have used, and still use, one or another of these supplemental books in my own first-year class. But this approach does not by itself achieve all the ends of the enriched case method, notably because that method depends on multiple exemplars. Moreover, this supplemental approach can have some problems, because the supplemental book can be hard to integrate with the casebook. My own consequent difficulty is that I tend to lapse, especially after using the same supplemental book for a few years, into leaving it mainly to the students' independent reading, thereby defeating some of its purposes.

Case Studies. The more effective way to achieve the ends of the enriched case method, therefore, is to supplement intermittently as the class reaches key cases in the casebook. All teachers do this to some degree in the classroom, by injecting contextual information orally that

32 See, e.g., Evmail from Rogelio Lasso, Professor, Washburn University School of Law, to Civil Procedure Listserve, civpro@law.wisc.edu (June 11, 2002) ("I found that using A Civil Action or other materials was too time demanding so for the past couple of years designed my own 'class case,' which is usually an amalgam of several complex cases, usually tort cases. The class case is usually two or three single space pages that include names of injured parties, potential wrongdoers, and detailed accounts of 'what happened.' We begin the semester by meeting the injured parties and one or more defendant as potential 'clients' and we refer to the class case from the beginning, to determine if we should take the case, to using the class case facts and the rules to draft simple complaints, discuss how we can attack a complaint, figure out a discovery plan, etc.").

33 E.g., David Crump & Jeffrey B. Berman, The Story of a Civil Case (3d ed. 2001); Marc A. Franklin, The Biography of a Legal Dispute (1968); Joseph W. Giannon, Civil Procedure: Examples and Explanations 523-630 (4th ed. 2001); Samuel Mermin, Law and the Legal System (2d ed. 1982); Peter N. Simon, The Anatomy of a Lawsuit (rev. ed. 1996); Gerald M. Stern, The Buffalo Creek Disaster (1976) (related film clips available at http://ns.appalshop.org/film/buffalo/), discussed in Lawrence M. Grosberg, The Buffalo Creek Disaster: An Effective Supplement to a Conventional Civil Procedure Course, 37 J. Legal Educ. 378 (1987); Barry Werth, Damages: One Family's Legal Struggles in the World of Medicine (1998); William Zelermyer, The Legal System in Operation (1977).

34 Lewis A. Grossman & Robert G. Vaughn, A Documentary Companion to A Civil Action with Notes, Comments, and Questions (rev. ed. 2002) (treating Jonathan Harr, A Civil Action (1995» (related videotapes available at http://www.law.seattleu.edu/woburn).

35 Nan D. Hunter, The Power of Procedure: The Litigation of Jones v. Clinton (2002) (treating Clinton v. Jones, 520 U.S. 681 (1997)).

i.

b

KEVIN M. CLERMONT

11

they may have acquired by their own research, by word-of-mouth over the years, or by gleaning it from the teacher's manual for the casebook. Indeed, casebook editors frequently convey the juicy stuff privately in their manual, with the intent of enabling the teachers to jazz up their class by springing the information on the students. But such intent and means are hardly conducive to providing the real enrichment needed.

Because a quick aside by the teacher is unlikely to work, assigned reading (of moderate length, of course) on multiple cases is the optimal way to go. Basically, the extra assignment will compel the students to ponder the key case, examining it from various angles and milking it for multifold lessons-this is, after all, the method of the enriched case method. The reading encourages the students to build a solid schema, as they incorporate more information into their schema and make new connections within their' schema. They will, at the least, realize that their study is supposed to involve more than unearthing the case's holding. Incidentally, the very act of assigning extra reading for the particular day forces the teacher to pause on the elaborated case. And specific case-oriented supplementation is easy to integrate with any civil

procedure casebook. .

This approach of intermittent supplementation by assigned readings might depend on the teacher's compiling a personal collection of readings, drawn from the existing but scattered books and articles treating the landmark cases of civil procedure." An easier way would be to assign a pre-existing collection. The fine Civil Procedure Anthology" moved toward opening this option. Its last section presents four articles constituting case studies of Pennoyer,38 World-Wide Volkswagen,39 Erie,40 and

36 E.g., George Dargo, Public Power and Privatization 114-70 (1980), revised in George Dargo, Law in the New Republic 107-36 (1983) (treating Livingston v. Jefferson, 15 F. Cas. 660 (C.C.D. Va. 1811) (No. 8411»; Ronan E. Degnan, Livingston v. Jefferson-A Freestanding Footnote, 75 Cal. L. Rev. 115 (1987) (same); Alan F. Westin & Barry Mahoney, The Trial of Martin Luther King (1974) (treating Walker v. City of Birmingham, 388 U.S. 307 (1967)); C. Michael Abbott & Donald C. Peters, Fuentes v. Shevin: A Narrative of Federal Test Litigation in the Legal Services Program, 57 Iowa L. Rev. 955 (1972) {treating Fuentes v. Shevin, 407 U.S. 67 (1972»; Christopher D. Cameron & Kevin R. Johnson, Death of a Salesman? Forum Shopping and Outcome Determination Under International Shoe, 28 U.C. Davis L. Rev. 769 (1995) (treating International Shoe Co. v. Washington, 326 U.S. 310 (1945»; Benjamin Kaplan, The Great Civil Rights Case of Hague v. CIO: Notes of a Survivor, 25 Suffolk U. L. Rev. 913 (1991) (treating Hague v. CIO, 307 U.S. 496 (1939)).

37 David 1. Levine, Donald L. Doernberg & Melissa L. Nelken, Civil Procedure Anthology 541-76 (1998).

38 Pennoyer v. Neff, 95 U.S. 714 (1878), treated in Wendy C. Perdue, Sin, Scandal, and Substantive Due Process: Personal Jurisdiction and Pennoyer Reconsidered, 62 Wash. L. Rev. 479 (1987).

39 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), treated in Charles W. Adams, World-Wide Volkswagen v. Woodson-The Rest of the Story, 72 Neb. L. Rev.

1[" '~II

"'

'''''11

'I''I 11,11,

'1111

" II

1111" II

I,,;

I'I!II 'il

,iii:1

lill IIIi

I~I 11"1

[I ~ 'II

11/

I! !I

I' I'

I

1111

I

,I i

,

III'

12

INTRODUCTION

Hichman" A more complete alternative for intermittent supplementation now exists.

This Book

Here is this book's background. In 2001, Professor Paul Caron submitted a book proposal to the Foundation Press for Tax Stories: An In-Depth Look at Ten Leading Federal Income Tax Cases (2003). Upon approval, he signed ten leading tax scholars to prepare the studies on the foundational cases of tax law. Also, he convinced Foundation to create a whole new "Law Stories" series of books, of which he would be the series editor." I was asked to edit the volume on civil procedure.

So, the book in your hands is part of this new series. This book involved a collaborative effort with a baker's dozen of law-school professors joining me in trying to provide a deeper understanding of the great civil procedure cases. We professors each wrote a short chapter on one of the cases, retelling the cases in our own voice and by our own method.

The book thus tells the stories behind the cases. It also helps students, as well as academics and practitioners, better appreciate the historical context of these cases and the role they continue to play in our current debates. A subtheme running throughout the book is the special role of interdisciplinary methods and diverse perspectives necessary to the study of civil procedure-to understanding its historical development, its current problems, and its future potential.

1122 (1993), which, in a heart-rending description of the accident and the litigation, reports the significant fact that the plaintiffs joined the distributor and retailer in order to defeat removal and thus stay in a state court known for high verdicts; soon after the U.S. Supreme Court's decision, the case was in fact removed and the Robinsons lost at trial.

Later, the Robinsons made numerous legal attempts to recover from Audi, including trying to reopen the judgment by alleging Audi's fraud in the initial litigation, but none was successful. After the Robinsons lost their bid for an appeal to the Supreme Court on that fraud suit in January 1996, almost twenty years after the accident, they decided to give up. Instead of living in the home they originally purchased in Tucson near a golf course, they live in a mobile home on the other side of town. Sadly, they allege that their original attorney never told them that Audi had offered to settle the case for $1 million. See Hipolito R. Corella, Tucsonans Lose Battle Against Audi, Ariz. Daily Star, Jan. 9, 1996; available at 1996 WL 4979662.

40 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), treated in Bob Rizzi, Erie Memoirs Reveal Drama, Tragedy, Harv. L. Rec., Sept. 24, 1976, at 2 (brief student-newspaper article).

41 Hickman v. Taylor, 329 U.S. 495 (1947), treated in Paul Coady, Dredging the Depths of Hickman v. Taylor, Harv. L. Rec., May 6, 1977, at 2 (brief student-newspaper article).

42 See Paul L. Caron, Back to the Future: Teaching Law Through Stories, 71 U. Cin. L.

Rev. 405 (2002).

KEVIN M. CLERMONT

13

Each chapter has a fairly consistent structure, with separate sections on:

• social and legal background of the case;

• factual background of the case;

• lower court proceedings in the case;

• final appellate disposition, including issues, decisions, reasons, and separate opinions;

• factual postscript to the case;

• immediate impact of the case on the development of the law (why the

case is famous and when it became so); and

• continuing importance of the case today (why it is still a leading case). The analysis of the proceedings and disposition discusses the positions taken in the briefs by the parties and describes the oral argument. The analysis of the influence of the case on the law, then and now, considers the reaction of contemporary commentators and also later judicial and legislative adjustments. While each chapter thus has a consistent look, at the same time each has a dynamic and responsive content. These chapters are not a rehashing of judicial opinions that students can easily find for themselves in law reviews. Instead, each conveys the background along with any innovative analysis the author has of the case. The author delivers a narrative reconstruction of the origins, development, and historical significance of the case, and also develops compelling insights on a particular theme, process issue, or historical or socioeconomic perspective.

There is an accompanying website, http://civprostories.law.cornell.edu, which can serve as a research tool for students, academics, and practitioners. The posted materials, which also appear on the TWEN site accessible from http://www.lawschool.westlaw.com. comprise the following with respect to each of the cases featured in the book:

• actual pleadings and other documents figuring in the case;

• lower court opinions; ~

• briefs of the parties and amici curiae;

• audiotapes (which exist for all post-1954 Supreme Court decisions) and sometimes transcripts (which consistently exist post-1967 and selectively exist back to 1935) of oral arguments;"

43 See Transcripts and Recordings of Oral Arguments, at http://www.supremecourtus.gov/oraLarguments/availabilityoforaiargumenttranscripts.pdf (Oct. 2002); cf Elizabeth Lambert, U.S. Supreme Court Research-Select Internet Sites, at http://www.llrx.com/features/scourtsites.htm (May 15, 2002) (more general sources); Cornell Law Library, U.S.

-- ~

I III

1111

, "11

11",11

1""1

1111111 111I 1111"11

'111111

11111 111111 11I1

1I111 ' 111"

14

INTRODUCTION

• final appellate opinion; and

• any relevant documentary or visual enhancement available.

Okay, so which are the cases? The cases selected are ones that (1) appear in most of the major civil procedure casebooks, (2) are foundational in the sense that they were significant in the development of the law and continue to shape the law, and (3) have a particularly interest, ing story to tell based on their facts and historical context. Given these criteria, the cases are all Supreme Court cases. Although it would be impossible for everyone to agree on a "top ten or so" list, this book's list would enjoy widespread acceptance in the civil procedure community. Happily, the selected cases for Civil Procedure Stories cover much of the range of the existing law of civil procedure, and so they logically arrange themselves in this doctrinal structure:

I. Forum

1. Governing law-Erie.44 Exploration of civil procedure's most famous case illuminates federal-state relations, as well as judiciary-legislature relations, for the student. Professor Purcell relates the fascinating story of how Justice Brandeis pursued his progressive political agenda through cajoling and misleading, thereby producing a heartbreaking and revolutionary result desired by neither the poor plaintiff nor the corporate defendant. In the long run, however, events frustrated even some of Brandeis's own aims. Thus, this chapter nicely illustrates the application of historical methods both in understanding a case itself and also in appreciating how time can reshape the meaning of a case in practice.

2. Subject-matter jurisdiction-Owen Equipment & Erection Co. v.

Kroger.45 The facts of this leading case on supplemental jurisdiction are so perfect that they seem to have been hypothesized solely for classroom use, and the background of how the lawyers, the courts, and the Congress have gone about addressing this jurisdictional problem does wonders to teach the legal proces~. Professor Oakley takes the Court's black-and-white facts and makes them even better, by richly retelling the story in all its true color: it turns out the poor widow's lawyers were the ones

Supreme Court Records and Briefs, at http;//www.lawschool.comell.edullibrary/RESOURCES/Guides_by_Topic/SupremeCourt.htm (Feb. 11, 2004).

44 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

45 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978).

j

l

KEVIN M. CLERMONT

15

at fault, and the mean corporation's strategy was sloppy rather than sneaky. He then fits the Court's decision, which now seems not so heartless but still misguided, into a historical sweep as well as into the pattern of jurisdictional doctrine.

3. Territorial jurisdiction-Shaffer.46 While many classic cases could expose the workings of interstate federalism, this case was the first explicitly to combine into today's constitutional law the themes of power and reasonableness and then to apply those two tests to nonpersonal as well as personal jurisdiction. Professor Perdue tells another tale of the parties' lawyers guessing wrongly, or more likely not sharing, the Court's concerns and thereby failing to argue jurisdiction effectively on review. She also relatedly observes how the Court's specific applications of its new theory of substantive due process to the case's facts have fallen by the wayside, while the Court's theoretical synthesis has stood the test of time to stand as the current doctrine of territorial jurisdiction.

4. Procedural due process----,Connecticut v. Doebr" This perhaps most important case on procedural due process arose from a fist fight in a park. The Court's decision managed to rationalize its earlier confusing decisions on prejudgment seizure of property for security, although the decision does leave unresolved some key questions. To approach an understanding of the case requires the use of law-and-economics analysis. Professor Bone brings that analysis to bear, while informatively contrasting it with rights-based analysis.

5. Venue-Piper.48 Another case with perfect facts has the parties careening from state court to federal court to another federal court across the country to Scotland, thus highlighting the role of forum selection in our very complex judicial systems. I maintain that the Court's opinion was poorly crafted. Yet the case's unfolding nonetheless demonstrates how removal, transfer, and forum non conveniens integrate state and federal court systems, and how such devices also take a step toward integrating U.S. and foreign court systems. That integration is so complex that until this case is understood, one has no clue how the various judicial systems really work, or what federalism and globalization really mean.

46 Shaffer v. Heitner, 433 U.S. 186 (1977).

47 Connecticut v. Doehr, 501 U.S. 1 (1991). ~

48 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).

[' I

IIII

, II

II" ~I

11"'11 11" 11111 111111

11"

IIII

1111

'11"1111' Ii "I

IIII

16

INTRODUCTION

II. Pretrial

6. Parties-Hansberry.49 On marvelously revealing facts of restrictive covenants in Chicago, this classic case was more about race than civil procedure. Nevertheless, in trying to avoid the racial aspects while retrieving justice through procedure, the Court not only expanded the scope of due process, but also explored the subject of complex litigation. The holding, of course, was that the inadequately represented absentees were not bound by a prior class action judgment. But Professor Tidmarsh's original research undermines the widely accepted premise that the class action had been the product of fraud and collusion. Without that key fact, the Court's approach becomes much more questionable. Still the case remains pivotal as well as fascinating, involving as it does a walloping good story with a great cast of characters.

7. Pleadings-Conley. 50 This ultimate case on notice pleading provides the stage for consideration of the models of procedure, as it invites tracing the movement from the issue pleading of the common law to the fact pleading of the code system to modern procedure. Professor Sherwin then explains how this momentous decision enshrining notice pleading came about by accident, as Justice Black tossed off a few irritated and largely irrelevant remarks concerning Federal Rule 8 while the Court was focusing on the important question of racial segregation in the nation's railway unions. His judicial performance constituted the offhanded end to the long and intelligent debate among proceduralists on the proper role of pleading.

8. Discovery-Hickman.51 The context of this great case on discovery of work product showcases the rulemaking process, while the case itself compels reconsideration of the adversary system and the lawyers' professional role therein. In these regards, Professor Marcus shows the continuing importance of the Court's decision, which resolved the tension between discovery and adversariness by uttering the preeminent statement in favor of the lawyer's adversarial role. But he further suggests that the case's work-product doctrine itself, while still of great importance in practice, has ceded discovery's center stage for doctrinal controversy. In its place, during recent decades, has come a new generation of controversial attacks premised on a more general,

49 Hansberry v. Lee, 311 U.S. 32 (1940). 50 Conley v. Gibson, 355 U.S. 41 (1957).

51 Hickman v. Taylor, 329 U.S. 495 (1947).

KEVIN M. CLERMONT

17

view that the burdens of discovery too often outweigh its benefits.

9. Motions-Celotex.52 The leading case on summary judgment deserves study here because the system's fixing of the proper role for summary judgment reveals the essential nature of its civil litigation. Professor Shapiro conveys an understanding of this key procedural device, both historically and in terms of the present debate. He does so by tracing in detail the peculiar route of this asbestos lawsuit, following the twists and turns that surprised the sometimes inept litigants on their way to an unfortunately ambiguous destination. Following the case's route makes the holding more comprehensible, but also exposes more clearly how and why the basic policy disputes remain unresolved.

III. Trial

10. Jury-Colgrove. 53 This case that authorized six-person civil juries not only treats trial in its most important aspect of the jury right, but also opens the widest portal to consideration of social-science methodologies in the law. Professor Rachlinski sketches a scathing picture of the Court's handling of the social science in this key case. He then goes on to give an insider's somewhat jaundiced view of social science's potential contributions to civil procedure cases.

IV. Judgment

11. Res judicata-Parklane.54 The Court's embrace of res judicata on this case's extreme facts forces the question of whether we are going too far, by elevating simplistic notions of efficiency over real concerns of unfairness. Professor Grossman demonstrates convincingly how the social and legal times were just right for this Court's approval of offensive nonmutual issue preclusion as a way to alleviate the supposed "litigation crisis," as well as how that approval became easier when the plaintiff's advocacy (with the government's support) overwhelmed the misdirected lawyering on behalf of the precluded defendants. He even suggests that if the case had arisen in today's clime more favorable to business defendants, and if the lawyers had presented the case more effectively and provided at least some empirical data, it might well have turned out differently.

52 Celotex Corp. v. Catrett, 477 U.S. 317 (1986). 53 Colgrove v. Battin, 413 U.S. 149 (1973).

54 Parklane Hosiery Co. v. Shore, ~39 U.S. 322 (1979).

V. System

13. Adjudicatory-Goldberg.56 This trail-blazing case exposes the values expressed by our formal system of adjudication. The Court there confronted a newly invented cause of action and, in deciding the test case brought by adventuresome advocates, determined the procedure that is due before the state terminates welfare benefits. Professor Resnik explains the legal and social context of this case brought on behalf of the impoverished, but she goes much further. Indeed, she contends that the decision provides a shorthand for addressing the most basic questions faced by any adjudicative system: Why have process at all? What form should any required process take, considering its costs and benefits and given the inevitability of disparities in resources?

14. Adversarial=-Zcsszzer." The squirm-worthy facts and the clashing opinions of this eminently teachable case put the values of our adversary system on exhibit, as the Court determined the representation that is due before the state terminates an indigent's parental rights. Professor Thornburg does a marvelous job of digging into the facts to suggest that the mother there may very well have not been the "bad mother" all the Justices assumed her to be. This insight heightens the obviousness of the importance of counsel in that case's shameful proceedings

-II~~
··11111
18
111111111 12.
III ~IIII
1111111111
1
I
i
ill"l~
1111111 '1"1111

[.

INTRODUCTION

Recognition and enforcement-Hilton. 55 This sole foray by the Court into international recognition and enforcement of judgments has had since 1895 a peculiarly indirect effect on U.S. law, but accelerating globalization is now pushing the case into the foreground of national lawmaking, treaty negotiations, and transnational litigation. Professor Teitz tells the tale of how kid leather gloves produced such an amazingly complicated set of lawsuits in France and the United States. She also shows how in its ultimate resolution the Supreme Court's surprisingly modern-sounding dicta on comity, or deference to foreign legal systems, have shaped the variegated U.S. law on judgments. While we have largely forgotten its actual holding, which required reciprocal respect of our judgments by the foreign sovereign, the recently rocky course of international negotia-

tions for a jurisdiction-and-judgments treaty threatens a federal resurrection of the reciprocity requirement.

55 Hilton v. Guyot, 159 U.S. 113 (1895). 56 Goldberg v. Kelly, 397 U.S. 254 (1970).

57 Lassiter v. Department of Soc. Servs., 452 U.S. 18 (1981).

KEVIN M. CLERMONT

19

and in our legal system generally. Thus, not only can this chapter fairly criticize the Court's narrow focus in this case and its unsatisfactory resolution against a right to counsel for that mother, but also this book is able to close with a fairly personal message to law students reading it.

By way of generalizations after reading about all these cases in one place, I would say that the great cases of civil procedure have a lot of personality. But I knew that already. Next, I would say that these great cases nicely convey the range and structure of the subject of civil procedure. But that is part of the reason we chose them for the collection. Finally, I would say that these chapters do a wonderful job of providing the raw materials for students' schema-building in civil procedure.

If pressed for a surprising generalization, I suppose I would express my own surprise that so many of these cases (but by no means all) seem to be rather shoddy products, upon close examination seriatim. The Supreme Court does not do civil procedure well. Why?

To begin, I wonder if this is just an illusion. I readily admit I am taking a very unscientific approach in making what is an empirical observation. Or perhaps the effect is a mere reflection of a repetitive professorial bent to find fault in others. To my mind, however, the authors each appear to be on solid ground, and well-motivated, in whatever fault-finding they have done in their chapters.

Next, it could be that a book of law stories naturally focuses on landmark cases, ones that took a big step to change the law. Big steps often turn out to be shaky steps. Moreover, at least based on this book's set of law stories, many of the landmark cases involve poor lawyering that failed to join issue in a way that addressed and informed the Court's concerns, or the cases involve the Court simply going off unannounced far into uncharted waters. Blindfolded steps are even more likely to be shaky. In a way, these failures are reassuring, because they suggest that the common law's contentious adversary system and incremental adjudicatory process can produce a b~tter product, when they do not break down and when they are allowed to operate.

In fact, when I look at the other books in the Law Stories series, I do not get quite the same impression of a series of judicial missteps. Maybe it is that the Supreme Court does not do civil procedure well. To the extent this is true, the cause might lie in the Justices' lack of specialization, or even interest, in the civil cases that turn merely on procedure: these opinions do not necessarily represent plum assignments. Or perhaps the cause lies in the often unacknowledged difficulty and subtlety of the subject: as we teachers know, civil procedure is unusually marked by the interdependencies of its parts and by the latency of its values.

I, I

1,,1

1111'1

1IIII

I1111

1111

i""

11"11

,11,,,11

III II

1111" II

,I Ii

II II

'I II 'II Iii

'111

20

INTRODUCTION

Well, whether my attempt to draw a surprising generalization holds water or not, I do know that the following fourteen chapters accomplish a good deal. While pointing out some judicial mistakes, they certainly fill in many blanks left by even the best student's reading of the leading cases. These authors so provide the materials for learning much civil procedure.

from Harvard Law Record, Sept. 23, 1988, at 7

,

l

1

Edward A. Purcell, Jr.

The Story of Erie: How Litigants, Lawyers, Judges, Politics, and Social Change Reshape the Law

Erie Railroad Co. v. Tompkins' is one of the most famous cases in American law, unusually important and also unusually puzzling. It is important because it implicated an extraordinary number of fundamental issues ranging from elevated questions of legal philosophy and constitutional structure to practical problems of judicial administration and manipulative litigation tactics." It is puzzling because the Court's opinion made a drastic change in the law on the basis of principles that were not fully specified and reasoning that was abbreviated and, in part, intentionally misleading.

Unfortunately for students of civil procedure, Erie's intrinsically puzzling qualities have been compounded by the extrinsic processes of historical change." When announced, Erie was a response to more than

1 304 U.S. 64 (1938).

2 It involved, for example, the meaning of both of the Constitution's basic structural principles, federalism and separation of powers, as well as problems of securing efficiency and convenience in the judicial system, the role of stare decisis, the scope of judicial lawmaking, the distribution of cases between federal and state courts, the conflict between declaratory and positivist theories of law, and the tactical manipulation of procedural and jurisdictional rules.

3 Erie's fate was not unique. Over time, historical changes often modify the meaning and practical significance of legal decisions. See, e.g., Lillian R. BeView, Intersection and Divergence: Some Reflections on the Warren Court, Civil Rights, and the First Amendment, 59 Wash. & Lee L. Rev. 1075 (2002) (noting that the Warren Court's First Amendment decisions were intended to foster the civil rights movement but that the doctrines of those cases no longer support that cause). What was unusual about Erie was the sweeping and