So I went to the annual conference of the Association of American Law Schools in New Orleans this past weekend. The place was lousy with law school deans and I had a ton of interesting, off-the-record conversations that I can’t report on. I also spent a weekend in New Orleans that involved all sorts of other things I can’t report on. It was fun and informative, you just have to trust me.
One thing I can report on was an AALS panel I attended, “The 75th Anniversary of the Federal Rules of Civil Procedure: Looking Back, Looking Ahead.” Now… I know that doesn’t scream “drop your panties,” but the panel was moderated by Arthur Miller. Yeah, that Arthur Miller, the famous law professor who wrote Death of A Civil Procedure Rules Salesman or something. And the all-star panel he was moderating included Justice Antonin Scalia… a person Miller doesn’t really agree with when it comes to rules. I had to go. Literally, I had to.
Unfortunately, the conversation was completely over my head. I’m not embarrassed to say that. Other people in my position may pretend that they got the most out of this discussion between Miller, Scalia, Biglaw partners, district judges, and others who have advised the Rules Committee. To me it sounded like, “TWOMBLY wha wha whaa, but in IQBAL wha wha wha wha! Wha? Given TWOMBLY’s wha and IQBAL’s wha, how could you wha wha whaaa?? [Laughter]”
That doesn’t mean I didn’t learn anything….
First of all, let me paste in the panel participants in order to explain why I subjected myself to an hour and half long Civ Pro lecture:
Speaker: Mr. Jack Balagia, Exxon Mobil Corporation
Speaker: Mr. John Beisner, Skadden, Arps, Slate, Meagher, & Flom LLP
Speaker: Stephen B. Burbank, University of Pennsylvania Law School
Speaker: Ms. Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP
Speaker: The Honorable Patrick E. Higginbotham, U.S. Court of Appeals for the 5th Circuit
Speaker: Mary Kay Kane, University of California, Hastings College of the Law
Speaker: Mr. Emery G. Lee, III, Federal Judicial Center
Moderator: Arthur R. Miller, New York University School of Law
Speaker: Alan B. Morrison, The George Washington University Law School
Speaker: The Honorable Lee H. Rosenthal, United Sates District Court Southern District of Texas
Speaker: The Honorable Antonin Scalia, The Supreme Court of the United States
Speaker: Mr. Matthew Lee Wiener, Administrative Conference of the United States
It was a very big panel.
And Miller ran it like one of his classes. It’s that maniac Phil Donahue thing he does, only if Phil Donahue was pretty much a genius who asked probing questions of smart people.
I didn’t think he’d get away with that with justices and judges, partners and professors, but of course he did. He’s Arthur freaking Miller. He had the mic. He was asking the pointed questions, interspersed with fun stories about working on various FRCP rules while sitting in the backseat of a car.
Miller seemed to suggest that the majority misapplied the precedent of Twombly in its Iqbal decision, which was fun since Scalia was with the majority in Iqbal and clearly disagreed. But, and you’ve seen this if you’ve ever seen Supreme Court justices talk on a panel, there was very little Scalia could actually say about the “future” of civil procedure (or anything else). Scalia’s main contribution was to say the the Supreme Court wasn’t exactly the best place to write new rules of civil procedure, or rewrite old ones.
As Miller moved away from Iqbal (and it took a while, you got the feeling that Miller hasn’t had the pleasure of getting to ask Scalia questions as much as he would like), the panel discussed interesting issues involving discovery, e-discovery, and class actions. This is where the rest of the panel really came alive. Discovery is a very practical issue for all kinds of lawyers and people interested in jurisprudential fairness.
Judge Higginbotham framed the discovery issues in a useful way; he said that right now, the discovery regime is there to discourage people from trial, when really it should be there to encourage people to get to trial, because trial is the best way to get to the settlements that actually clear dockets. Many of the other panelists disagreed with some or all of Higginbotham’s assumptions, but I thought he made the best connection between how discovery directly relates to the issues actual practitioners are dealing with.
Really, the whole thing reminded me that you can do high-level theoretical debate and practical learning about work-a-day stuff all in one sitting. We act too often (and I’m as guilty of it as anybody) like there’s a Yale way of pure theory versus some kind of other way that really prepares you to hit the ground running as a practitioner.
But you can do both. At least, you know, if you have Arthur Miller teaching you. And a Fifth Circuit judge answering the panel questions instead of a terrified 1L. You can start at 30,000 feet and drill right down to what a class-action lawyer with a shingle has to plead in order to not get thrown out of court. And I hadn’t even done the reading.
It’s just hard to do it that way. And there probably aren’t 200 law schools that are full of teachers who can do it. And so most people either teach a kind of jurisprudential theory that’s largely masturbatory, or they teach remedial bar prep under the guise of “practice ready” course offerings.
At the end, Miller asked if it was time to write a brand new FRCP, and gave Scalia the last word. It’s not going to surprise anyone that Scalia didn’t really feel that we needed a brand “new” anything. But his reason was that the Court is not really a theoretical body. They can only take the cases that come before them; the Court doesn’t actually have the capacity to sit down and think up a bunch of new civil procedure rules.
They’re too busy dealing with the real world.
The 75th Anniversary of the Federal Rules of Civil Procedure: Looking Back, Looking Ahead [Association of American Law Schools]
2013 Annual Meeting Program [Association of American Law Schools]