[MUSIC] My name is Tobias Wolff. I'm a member of the faculty at the University of Pennsylvania Law School. I'm standing here in Silverman Hall, which is one of the grand old buildings of Penn Law School. It is a classroom and was originally a part of the reading room that was a component of the library in the original building. And my specialty here on the Law School faculty is the related issues of civil procedure and complex litigation. And, I'm going to be talking a bit about the field of civil procedure, what civil procedure is, and some of the major themes and issues and problems that the fields of civil procedure and complex litigation are dealing with in the United States today. So for starters, let's get some definitions on the table. What is civil procedure? Broadly speaking civil procedure has two components, civil and procedure. Civil in this title describes the workings of our judicial system that have to do with the resolution of disputes between people, or sometimes between people and government, that are not criminal in nature. Civil disputes have to do with disputes over ownership of property, injuries that you think you're entitled to be compensated for, contracts that you want to get enforced, so forth. That is a civil dispute. Procedure describes the mechanisms by which we use our court system to resolve disputes. And so the field of civil procedure, broadly speaking, is a field that relates to the use of our court systems to resolve civil disputes between people, To resolve disputes over property, over contracts, over injuries. And the mechanisms by which we resolve those disputes and the ways in which our court system operates in the resolution of those disputes. Now, the field of civil procedure encompasses a very wide array of issues that have to do with the power of courts, that have to do with the ways in which people approach the resolution of their disputes, and the power that is bound up with procedure. That is to say the power that is bound up with these mechanism, mechanisms that we use for the resolution of disputes. I'd like to frame my discussion about civil procedure with a quotation from a man by the name of Karl Llewellyn. Llewelyn was a legal scholar, writing in the first part of the 20th century. And in 1929, he wrote a series of essays that were designed for incoming law students and that were in, intended to introduce law students to the fields of study that they were about to be undertaking. And it was a set of essays that were, a set of lectures that were published in a book that was called the Bramble Bush. And when he was talking about the field of procedure, he said the following. You must learn to read your substantive courses, as it were through the spectacles of the procedure. Because what substantive law says should be means nothing, except in terms of what procedure says you can make real. Now, Karl Llewellyn was writing at a time when the issue of procedure and procedural reform was really quite urgent. The procedures in our civil court systems in the United States have not always functioned particularly well. And the early part of the 20th century was a time when procedures were extraordinarily varied around the country and even varied within our federal court system, which is our national court system. And there were a lot of very active and elevated conversations [COUGH] around the country about procedural form, reform and what procedural reform might look like. And Llewellyn was specifically writing at a time when procedure was in danger of actively frustrating the ability of litigants to prevail on their claims or to, to bring their claims forward in an effective and meaningful fashion. And in particular he lived and taught in New York at the time, and New York had a really messed up set of procedures in their state courts. And for a series of historical reasons at this point in time, the federal courts looked to what state courts would do in deciding what procedures they would use in many of their cases. So we have, in the United States, two parallel court systems, a federal court system and court systems in each of the 50 states, and these are formally separate systems. And they're allowed to use different procedures and have many different policies surrounding the resolution of civil disputes. And for a series of historical reasons in the early part of the 20th century and before, the federal courts in many respects didn't have their own procedures, they looked to what the states did. And at the time that Llewellyn wrote that quote, state procedures were a mess. And as a consequence a lot of federal procedures were a mess as well. And so conversations about procedural reform in the first 30, 35 years of the 20th century were both conversations about what a sensible procedure system might look like. But they were also conversations about whether it would make sense to have a single uniform set of procedures in the federal courts. And largely as a consequence of the negative history, the negative experiences that lawyers and judges had with the existing procedural system, in 1934 Congress passed this very important statute, the Rules Enabling Act of 1934. And the Rules Enabling Act was the very first time that Congress had provided for a single, uniform set of civil procedures to resolve civil disputes in our federal courts. And several years following the enactment of this statute, rule makers carried into effect, they brought into being, the very first set of general purpose, uniform procedural rules for the federal court. What are often described as the Federal Rules of Civil Procedure. So, understanding how civil procedure works in the United States is importantly in part, about understanding how both the origins of our federal procedural system and how procedures work in the federal courts. because federal courts are very important, place where civil disputes get litigated. And also the way that our federal courts resolve civil disputes winds up providing a model, winds up providing a lot of guidance how many, many states adjudicate civil disputes as well. So, in understanding civil procedure in the United States it's important to understand the federal system of civil procedure. And in particular, it's important to understand three basic principles, which are going to be the focus of much of my discussion here today about the American procedural system. The first basic principle involves a term called transsubstantivity. It's what you might think of as a philosophical principle that underlies the federal rules of civil procedure, and that has really served to shape, to a signifi, to a significant extent, the way that we think about how a procedural system ought to operate within the American justice system. The second basic principle is the relationship between quote, unquote, procedure and quote, unquote, substance. For a lot of people, particularly before you get to law school, if you hear a term like civil procedure, you think, oh that's going to be the really dry, boring stuff. And that's not remotely true at all. And this boundary between what we label procedure and what we label substance, it's a really important issue. And figuring out what it means to distinguish between procedure and substance actually winds up being one of the key issues in the administration of a civil justice system. And I'll say a few words about that. The third issue that I'm going to discuss has to do with efforts that are increasingly important in the 21st century for litigants, and in particular for powerful defendants like corporate defendants, to try to bargain their way out of the civil procedure system. And to use a mechanism called arbitration under the auspices of a very powerful federal statute called the Federal Arbitration Act to find ways to bargain their way around our civil justice system. So the three basic principles that we'll talk about in, in figuring out how exactly our civil justice system works are, number one, this philosophical issue of transsubstantivity. Number two this sort of practical concern about the distinction between procedure and substance, and what that distinction is meant to capture. And third, a recent development. A recent development of great practical significance, of efforts of people and particularly defendants to bargain their way around our civil justice system, and what some of the implications are for some of those efforts. [MUSIC]
