1  Introduction

Civil procedure is at once both fine art and low culture: Matisse and Marvel, Van Gogh and Van Damme, Bach and The Bachelor. It is low culture because civil procedure is often concerned with the mundane, everyday details of litigating civil disputes. It will teach you when you must file your brief, where you can file your lawsuit, and how to make a motion for summary judgment. From this angle, civil procedure is practical and rule driven. Though this side of civil procedure is indispensable in practice, it is also responsible for the subject’s undeserved reputation as dry, technical, and dull. Perhaps that reputation would be deserved if civil procedure’s domain were limited to technical minutiae.

Yet civil procedure also sounds in a higher key, one that forces us to confront fundamental questions about fairness, economic justice, efficiency, sovereignty, and democracy. Skillful use of civil procedure has led to landmark developments in the law. Brown v. Board of Education, for example, started as a class action civil suit filed in federal court. Conversely, the monstrous decision in Dred Scott v. Sandford sought to embed white supremacy in the law under the guise of civil procedure.

Whether you want to practice personal injury law, advise insurance companies, pursue impact litigation to reform prisons or the police, or check government tyranny through the courts, civil procedure will give you both the practical tools and the theoretical frame to pursue those goals. And even if you end up never litigating a single case, civil procedure is essential because it sets fundamental rules for our society. Nearly all our social, political, and economic life happens in the shadow of those rules.

To encompass procedure’s high and low aspects, our course of study will at various times look up or down. You will be expected to learn the Federal Rules of Civil Procedure and the cases that elaborate on their meaning. This study of numbered rules may at times seem mundane. But to truly understand the Rules, you must also embrace the competing theories that give rise to disagreements about how to apply them to individual cases.

We will also study constitutional rules that have been elaborated over decades to constrain state and federal courts. These rules have changed alongside the economy and technology—and they remain in flux today. To understand them, then, we will need to situate procedure and jurisdiction in social context. Mere recitation of numbered rules won’t cut it here.

Finally, procedure is an opportunity to learn skills that you can apply in your other courses. For example, you will encounter procedural issues in torts and contracts. Learning well what a motion for summary judgment is will help you in those classes as well. Similarly, much of the reading for this course will be opinions issued by federal courts in general and the Supreme Court in particular. We will therefore learn the essential skills of reading a case, understanding how judges apply rules and statutes to specific facts, and how they grapple with prior cases.