Teaching Civil Procedure with Political Economy in Mind

Helen Hershkoff–

Over a decade ago I wrote a short piece called “Poverty Law and Civil Procedure: Rethinking the First-Year Course [Poverty],” published as part of a symposium issue of the Fordham Urban Law Journal on the place of poverty in the law school curriculum. Reginald Heber Smith’s statement from 1919 was the epigraph: “The administration of American justice is not impartial, the rich and the poor do not stand on an equality before the law, the traditional method of providing justice has operated to close the doors of the courts to the poor, and has caused a gross denial of justice in all parts of the country to millions of persons.”

Poverty was practical and concrete, conceived almost in the style of Teacher’s Manual (indeed, it was geared to the casebook I know best, Friedenthal, Miller, Sexton & Hershkoff, Civil Procedure: Cases and Materials). I took inspiration from Kevin Johnson’s earlier article on introducing race into the 1L curriculum. Re-reading Poverty, it’s clear that the pedagogic suggestions are allied with the theoretical premises identified in this blog’s (near-)manifesto—(1) that politics and the economy “cannot be separated,” i.e. politics affects the distribution of economic resources and wealth affects the distribution of political power; and (2) that law constitutes, creates, promotes, and reshapes politics and the economy and is, in turn, affected by both. Here I sketch out some of Political Economy’s more important themes that relate to 1L Civil Procedure and begin to update the teaching approach in light of a few doctrinal developments. The goal is not a mechanical add-on of ideas associated with Political Economy, but rather to encourage a space in the 1L curriculum where suppressed issues about law and  power, both political and economic, can be raised and explored at an early stage in the students’ legal education. Continue reading