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American Civil Procedure: An Introduction (Yale Contemporary Law Series)

American Civil Procedure: An Introduction (Yale Contemporary Law Series)
Author: Geoffrey C. Hazard Jr. - Michele Taruffo
ISBN 13: 9780300065046
ISBN 10: 300065043
Edition: New edition
Publisher: Yale University Press
Publication Date: 1995-08-30
Format: Paperback
Pages: 240
List Price: $25.00

This clear and direct book by two distinguished professors of law describes and analyzes civil litigation in the United States. Geoffrey C. Hazard, Jr., and Michele Taruffo discuss specific details and broader themes of American civil litigation, explaining (without legalese) jury trial, the adversary system, the power of courts to make law as well as to "declare" it, and the role of civil justice in government and in the resolution of controversial social issues.

John P. McIver

Let me begin by correcting what may be a common misperception. While AMERICAN CIVIL PROCEDURE: AN INTRODUCTION (hereafter ACP) has been written by two law professors, this is not a casebook to be used in a first year civil procedure class. That is, it may look like a duck, but it does not quack like a duck, and should not be confused with a duck. (This is not to say it could not or should not be assigned at the very beginning of such a course to give new law students a grasp of the function and purpose of the civil procedures that will place so large a role in many of their careers.) ACP is perhaps best viewed as a prelaw undergraduate text. ACP might also be used at the graduate level for students without prior training or experience with the law or as context for the behavioral study of law. The tenor of the book, and the focus of the new Yale Contemporary Law Series of which it is a part, reflects the recent shift of university presses toward books with commercial possibilities. If there are commercial possibilities for this book, they lie in the degree to which ACP will compete with the variety of introductory textbooks on the American legal system. Most introductory textbooks do not identify their civil justice system bias. Nonetheless, most undergraduate texts de-emphasize the criminal justice aspects of the justice system with commentary often focussing on the civil justice system. Most current textbooks contain chapters on the structure of the court system, basic legal concepts, lawyers, trial procedures, and alternative dispute resolution. So does ACP. I found ACP more readable, perhaps for the authors' occasional willingness to be adversarial and assertive, than most contemporary texts. It also provides more depth to the discussion of procedure than common in currently available texts. The different tone to ACP should not preclude its adoption. Quite to the contrary, I suspect students may enjoy reading this book far more than they do the existing textbooks on the American legal system. The book is dominated by a focus on civil procedure yet nonetheless can serve as a general introduction to the American legal system. The first three chapters provide a history of civil justice, a lecture on the structure of the legal system and importantly the link between the legal system and the structure of American government, and discussion of the authority and functions of the courts. Chapter 4 explains the distinctions between various conceptions of proof and the ability of courts to find both truth and justice. Lawyers make the legal engine go and they are the subject of Chapter 5. Chapters 6 through 10 concentrate attention on procedure at various stages. Pre-trial and trial process are the subject of chapters 6 and 7. Alternatives to traditional litigation are discussed in Chapter 8. Judgment and appeals are the focus of Chapter 9 while Chapter 10 discusses the post-litigation process. A final chapter wraps up the book as the authors offer their expectations about the future of the American civil justice system. The advantages of this book lie in the historical context in which the authors place contemporary civil procedure. The confusion that often reigns in distinguishing common and civil law as practiced in American as opposed to civil justice systems in other nations is handled in greater detail than in most textbooks and is a much needed improvement. Similarly, the distinction between law and equity and its effect on procedure is handled in greater detail and clarity than usual. (Typically, it is a distinction mentioned in the first chapter and never heard from again.) The authors' argument that real change is more difficult to accomplish than court reformers expect is one of several intriguing conclusions offered in the final chapter. Yet there is a Jekyll and Hyde quality to this book. On the one hand, it is a wonderfully written summary of the basic components and procedures in the American civil justice system. Yet the authors ignore certain perspectives and evidence and these omissions limit the book. Page 94 follows: Perhaps they are implicitly arguing that such material should be ignored. Let me not put words in their mouths but suggest what I believe is missing. Clearly, there are different viewpoints between the authors' view of the literature they are summarizing and the reviewer, a behaviorally oriented political scientist who has taught introductory courses on the legal system to hundreds of aspiring pre-law students. I would argue that the authors do not discount the behavioral research in the study of the law as much as they ignore it. By ignoring this research tradition, they fall back on reporting how the legal system is designed to operate rather than how it actually does. In doing so, they paint a picture that lacks a substantial sense of the real world. For example, the authors hold up BROWN v BOARD and ROE v WADE as examples of the impact of the court system without acknowledging the controversy raised by Rosenberg's, THE HOLLOW HOPE (1991). They treat "great public controversies" and "routine litigation" as equivalent despite different treatments of such problems by courts, and they appear to claim that a principle of finality prevents the stronger or more persistent party from prevailing by protracting conflict when that is exactly the way the system often operates. Facts and figures do occasionally find their way into the discussion although the authors tend to skimp on the presentation of evidence. When "facts" are presented, however, it is often without reference to their sources. (For example, who says there are 750,000 practicing attorneys? Is this not a dated estimate?) Historical studies are identified without footnote or chapter reference. One assumes that if the reader could cross-examine the authors on the witnesses stand they would have the evidence and supporting documentation readily available. The frustration is that it is not provided in the book. The authors best foray into the real world comes in the chapter on enforcement of judgments (Chapter 10). They document both the need for additional legal effort beyond trial to collect a judgment as well as the "unpleasant truth" for many plaintiffs that defendants are "judgment proof". But again the reader would like to know the extent of the problem rather than the possibility that exceptions are used to prove the rule. There is an elitist tone to the discussion of the legal profession. The authors seem to have little regard for the majority of practicing attorneys while attributing "resourcefulness, energy and thoroughness" to an extraordinary few. Combined with the discussion of the variation in legal training, one senses there is a strong claim made being how good certain law schools are. Before claiming that "many" (a word I read to mean "more than half") lawyers are "poorly prepared", "confused" and "inept" I would like some evidence. (p.91) Similarly, while admitting that the majority of the legal profession practices alone or in small firms of two or three lawyers, the focus of attention seems to be on the practice of major corporate law firms. The discussion of "The Civil Litigation Team" (pp. 95-96) ignores the primacy of small legal practices in the profession of law. The discussion of constraints on litigation first says that the "primary constraint is cost" (p. 208) but then calls psychological distress the "greatest constraint" (p.210). The first statement reflects the continuing corporate perspective of the authors. The latter may indicate a concession to "ordinary" litigation but, wrapped up as it is in an old Learned Hand platitude, it is hard to see the authors as really considering the time and energy of litigants as a consequential consideration. While accusing the authors of producing a Jekyll and Hyde volume on the basics of civil procedure, the reviewer must admit to a review with similar characteristics. I think this is one of the most interesting textbooks on American courts that I have read. Yet its limitations are frustrating. The book ends by asserting that the fundamental problem for American civil justice is to reconcile ideals and reality. I would challenge the authors similarly. I hope there is a second (expanded) edition. Page 95 follows: REFERENCES Rosenberg, Gerald N. (1991). THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE. Chicago: University of Chicago Press.