User Friendly Civil Procedure: Pragmatic Proceduralism Slouching Away From Process Theory


Linda S Mullenix

56 Fordham Law Review 1023


Civil procedure as a discipline is suffering an identity crisis of disturbing dimensions, if one takes seriously the critical commentary appearing in journals and articulated at academic conferences. There is a palpable unease among scholars and classroom teachers concerning what civil procedure is and what it ought to be. Paradoxically, as scholars increasingly demand some intellectual framework for critically contemplating procedural issues, casebooks in the field doggedly seem headed in the opposite direction. Through some inscrutable academic principle of Newtonian physics, as the clamor for a theoretical paradigm grows louder, civil procedure casebooks quietly are becoming more pragmatically oriented.

This unfortunate trend prompts a number of subsidiary questions. What is civil procedure, anyway? Assuming that there is some agreed-upon consensus, why has this discipline failed to develop a coherent intellectual framework for discussion? Is the narrow, pragmatically oriented field of civil procedure antithetical to the formulation of an overarching theoretical framework? Is the insistently urged quest for procedural theory ultimately quixotic? Are classroom academicians destined to hew to a pragmatic proceduralism that, at best, will always be slouching away from some process theory?

Only the obtuse, the uninterested, or the hopelessly miscast procedure professor could fail to notice the growing gulf between what the market supplies by way of teaching resources and what the academic critics demand by way of principled, pedagogical (or political) reform. Thus, the arrival of a new procedure casebook offers a propitious occasion for peering into and stirring the simmering cauldron of procedural discontent. Because this casebook so consciously adopts a practical approach to the subject, its appearance in the stew is likely to occasion some renewed boiling, toiling, and trouble.

It is no grave criticism of Professors Crump, Dorsaneo, Chase and Perschbacher that their casebook is unabashedly practical, though theoretically undernourished. Indeed, this casebook joins the parade of traditional texts on the bookshelf, few of which have made that great leap towards a cohesive theory of the subject matter. Rather, the casebook states a more modest goal of outlining the fundamentals of civil procedure in an understandable fashion, accompanied by concrete examples of real-life litigation.

This is not an intellectually flashy casebook. It is not abstruse, theoretical, or jurisprudential. It certainly is not highbrow stuff. On the contrary, the overriding mission of this casebook is to present civil procedure in an accessible, non-threatening fashion. This casebook's sub rosa theme, if a casebook can be said to have a hidden message, is that civil procedure is your friend. In short, students will love it and many academicians will be dismayed.

This essay is divided into two parts. Part One examines the trend in civil procedure casebooks, placing the Crump text on an historical continuum moving from the theoretically abstruse to the pragmatically concrete. The larger issue entails the potential for development and integration of a theoretical framework into procedure casebooks, course materials, and classroom teaching. Although the literature is replete with critical questioning, an overarching theoretical framework in the field of civil procedure does not yet exist.

Part Two centers upon an evaluation of the Crump casebook's premises, avowed goals, and success. This Review's thesis is that in their attempts to render civil procedure ‘user friendly’ to first year students, the authors have reverted to a style of presentation that amounts to little more than casebook spoon-feeding. While clarity and conciseness are laudable goals, their enshrinement in a first-year casebook contravenes many of the pedagogical goals traditionally associated with first-year courses.

Full Citation

Linda S. Mullenix, User Friendly Civil Procedure: Pragmatic Proceduralism Slouching Away From Process Theory, 56 Fordham Law Review 1023 (1988) (essay reviewing Cases and Materials on Civil Procedure, by David Crump, William V. Dorsaneo III, Oscar Chase & Rex Perschbacher).