Asbury, Bret, "Excavating Subtexts and Integrating Humanity in Civil Procedure" (2012). The Circuit. 33.
This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.
I am currently in my fifth year as a law professor at Drexel University, where I teach Civil Procedure, Jurisprudence, and a Literature & the Law seminar. While Jurisprudence and Literature & the Law are fields arising directly out of the humanities, Civil Procedure-what with its heavy reliance on the Federal Rules and frequently unambiguous statutes-appears at first blush to exist in a separate realm, one of cold calculation and indifference to the human condition. It is perhaps for this reason that I had dispirited memories of Civil Procedure when I first set out to teach it five years ago. But as I have grappled with the material and evolved as a teacher over time, I have come to believe that the humanities can offer Civil Procedure a great deal, not only in terms of making this notoriously dry subject more engaging for my students, but in helping them to master the material as well.
Though I teach all three of my courses through a humanistic lens, I would like to highlight two humanities-inspired techniques that I have found to be particularly useful in teaching Civil Procedure. The first pedagogical technique is "close reading," the method of pausing over and examining selected words, phrases, sentences, and syntax in order to reveal subtextual meanings that might not initially be apparent. I have found this technique particularly useful in teaching personal jurisdiction, perhaps the most vexing of the topics customarily covered in an introductory Civil Procedure course. The second pedagogical technique I would like to highlight relates to my broader framing of Civil Procedure. Instead of teaching the course piecemeal, as a series of discrete topics, I endeavor to frame the whole of Civil Procedure as a clash of two competing grand narratives-the quest for justice versus the desire for courts to adjudicate disputes as quickly and inexpensively as possible. These two objectives are often at odds, and as we read cases, Rules, and statutes, I go to great lengths to underscore the struggle judges, drafters, and legislators necessarily face in resolving tensions between the two.
In this Essay, I will elaborate on how I employ these humanities-based techniques-one derived from literary criticism and the other aimed at establishing the humanistic struggle that I believe lies at the core of Civil Procedure-and the positive effects they have had on my students' understanding of this challenging subject.