Evolving Views of Civil Litigation: Future Civil Procedure Courses

Abstract

There is reason to think that Professors McManamon, Resnik and Eskridge might each welcome an independent civil procedure course chiefly focused on civil claim settlements. Professor McManamon wonders whether alternative dispute resolution processes are as "easy to grasp" as some have opined. She counsels that we should not fear creativity and "that we should not be afraid to question our Lengdellian universe." In conclusion, Professor McManamon urges civil procedure teachers to "communicate... to our students" the dramatic changes in civil litigation over the years in ways that make "the most sense." While expressing and urging us to maintain continuing faith in traditional trial court adjudication for many types of civil claims, Professor Resnik clearly understands that "[i]n the bulk of civil litigation, the parties' decisions to settle are not subjected to review." She posits that because of the "public, visible nature" of all trial court cases and their "public dimension," wherein the parties and others typically settle their differences within "our publicly-financed system of dispute resolution," more inquiry is needed into "the sources and scope of judicial authority" over settlement. Her own inquiry leads her to encourage the development of written rules guiding civil claim settlements, especially guidelines which would reduce the "echoes of the ambiguity about the judicial role in settlement" that presently exists, so that constraints may be put in place to better ensure that settlements are not "achieved under conditions of imbalance, lawyer ineptitude, indeterminacy, and judicial coercion." Professor Eskridge seemingly would also welcome an independent procedure course, and not one limited simply to civil procedure. Such a course certainly could never give any set of civil procedure laws "deferential, if not canonical, treatment," for, as Professor Resnik has lamented, civil procedure rules and statutes are largely silent about settlement. In such a course, "themes and structure of procedure" more likely will influence course direction rather than phrases or lines, as there is no singular arrangement implicated for a settlement, even with regard to a "typical" civil claim. There are significant opportunities in such a course for the exploration of "metaprocedure," as well as the "seamless web" and for a "practical focus on a vivid litigation experience." Professor McManamon has encouraged us to "debate," and to suggest procedure courses that make "the most sense." We should begin. Is it now time for a civil claim settlement course, intradisciplinary in nature, with emphases on: comparative federal and state laws; the anticipation and resolution of typical (private rights) civil claims; and simulated exercises significantly incorporating perplexing settlement law issues that most lawyers (in and outside of litigation) face today?