American civil procedure has a number of features that are discontinuous with the
procedures followed in civil law countries and even in other common law countries. The
Minister of Justice of your home country (Saudi Arabia) has asked you to
write a memorandum evaluating those aspects of American civil procedure which may serve as
models for improving your country’s current practice. He is also very interested in those aspects
of American procedure which should be avoided as destructive and likely to make things worse.
Write a memorandum offering your opinions to the Minister and the reasons for your
opinions. You should address only a small number of the aspects of American civil litigation
practices. Your reasons are more important than your opinions. Despite the Minister’s request,
you may focus only on positive or only on negative aspects of American procedure (if you think
there is nothing to avoid or nothing to emulate). There is no need to do both.
American Civil Procedure reflects a set of different and, some would say, conflicting ideals.
On the one hand, the Seventh Amendment and the prominence of the jury trial reflect a
“republican” confidence in the judgments of ordinary people on the kinds of issues that come before
courts. On the other hand, the lawyers and judges (who were lawyers) have a kind of professional
allegiance to “the rule of law as a law of rules” and have created a set of procedures and technical
doctrines that reflect that commitment to “the law of rules.”
How would you evaluate this balance struck between jury decision making and the
procedural devices designed to protect the “law of rules?” Do those procedures protect the
“republican” values of jury decision-making adequately? Do they protect the values embedded in
the rule of law?
in your answer to this question (the questions below) , tell me what the legal issue or issues
presented by each subsection is/are, even if you are not sure how to resolve the issue(s).
(Number your answers to the subdivisions.) If you would need more information to resolve
the issue, tell me what more you would need to know.
Thomas Johnson is a member of the American Service Workers’ Union. The Union’s
membership works mainly as low level workers in state agencies. Thomas Johnson works as a
social worker in the Illinois Department of Children and Family Services. At a meeting of the
membership on June 1, 2018, Johnson criticized the leadership of the union and claimed that “they
were more interested in inflating their own salaries than in serving the membership.” He asserted at
the meeting that the President of the Union, Don Jones, was the “least successful leader of any
union in the United States.” After he spoke for ten minutes, Johnson alleges, security officers
removed him from the hall before he could finish his speech. On February 1, 2019, Johnson filed a
lawsuit against Jones and the Union seeking (1) injunctive relief against the Union and Jones for
their breach of Johnson’s free speech rights under the federal Labor Management Disclosures Act
and (2) money damages for “breach of their duty of fair representation” for failing to pursue
grievances against the State agency for violation of Johnson’s seniority rights based on the
collective bargaining agreement.
Don Jones counterclaims against Johnson, claiming that the statements made by Johnson at
the June 1, 2018, meeting were defamatory under state law. Johnson moves to dismiss the
Counterclaim, alleging that there is no federal jurisdiction over the state law Counterclaim
and so it is improperly joined. What is the probable decision and why?
Assume the motion to dismiss the Counterclaim is denied. Jones argues that, as a matter of
defamation law, the truth of the statements Johnson made at the meeting is no defense to the
Counterclaim. Johnson argues that truth is a defense. The trial court regards this as an
unsettled question of law and is not sure what the answer is. Jones suggests that it is more
efficient for the appellate court to resolve this question immediately so that time and money
are not wasted addressing what may be a legally irrelevant matter. May Jones get
interlocutory review of this issue? If so, how?
Johnson seeks to include a claim against Jones, alleging that Jones negligently damaged
Johnson’s automobile in the company’s parking lot. Jones moves to dismiss the claim,
asserting that the joinder of these completely different issues is improper. What is the likely
ruling and why?
Assume that the defendants make a Motion for Summary Judgment on the injunctive claim
and on the damages claim in the case. They support the motion with affidavits from the
security officers at the June 1 meeting denying that they stopped Johnson from speaking,
statistical evidence showing that their salaries are lower than the average salaries of
comparable union officials nationwide, and describing the large legal fees they incurred in
pursuing grievances on behalf of Johnson. In response, Johnson (1) points to his allegations
in the complaint asserting his low opinion of Jones’ efforts on the grievance and (2) also
submits an affidavit describing the interruption of his speech. Should the Summary
Judgment be granted? Why or why not?
Assume that the District Court Judge denies the Motion for Summary Judgment, both with
regard to the claim for damages and the claim for injunctive relief. The plaintiffs seek
appellate review of the “interlocutory orders” denying their Motion for Summary Judgment
both with regard to damages and injunctive relief. What are the likely results and why?
Are the appellate issues surrounding the injunctive claims different from those surrounding
the claim for damages? If so, how?
Assume that Johnson makes a motion for class certification, both with regard to his claim
for injunctive relief and his claim for damages. Will the motion for class certification with
regard to damages be treated differently than his motion with regard to injunctive relief and
if so, how?
Assume that the motion for class certification is granted and the defendant seeks an
interlocutory appeal of the grant of class certification. Will the appellate court grant
interlocutory review and why or why not.
Assume that the motion for class certification is denied. Plaintiff seeks to join as party
plaintiffs two other workers, Peter Smith and Pamela White, who sought to address the
membership at a union meeting on May 8, 2019, in opposition to the union’s endorsing the
Democratic Candidate for Governor. Their requests to speak on that issue were denied and
they too seek injunctive relief against Jones and the Union.
Plaintiff Johnson makes jury demands with regard to his injunctive claim and with regard to
his claim for damages for the union’s breach of its duty of fair representation. The
defendant moves to strike the jury demands. What is the likely result and why. If you would
need to know more to answer this question, what more would you need to know?
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