Adding legislation courses to the first-year curriculum

Journal of Legal Education

Volumn 58, Issue 2, 2008, Pages 166-189

  Leib, Ethan J ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 58149260405     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (83)

1. See Jonathan D. Glater, Training Law Students for Real-Life Careers, NY Times, Oct. 31, 2007, available at 〈http://www.nytimes.com/2007/10/31/ education/31lawschool.html〉 (last visited Aug. 11, 2008).
2. See William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007), summarized at 〈http://www/carnegiefoundation.org/ files/elibrary/EducatingLawyerssummary.pdf〉 (last visited Aug. II, 2008).
3. See American Bar Association, Section of Legal Education and Admission to the Bar, A Survey of Law School Curricula, 1992-2002 (2004), summarized at 〈http://www.abanet.org/legaled/publications/curriculumsurvey/ executivesummary.pdf〉 (last visited Aug. 11, 2008);
4. American Bar Association, Task Force on Law Schools and the Profession, Legal Education and Professional Development-An Educational Continuum (Robert MacCrate ed., 1992).
5. Some, for example, took their lead from Grant Gilmore's suggestion of a "Contorts" course about obligations that spans both tort and contract. See Grant Gilmore, The Death of Contract 98 (Ronald K.L. Collins ed., 2d ed., Columbus, Oh., 1995);
6. Jay Feinman and Marc Feldman, Pedagogy and Politics, 73 Geo. L.J. 875 (1985);
7. Jay M. Feinman, Change in Law Schools, 16 N.M. L. Rev. 505 (1986).
8. But see E. Allan Farnsworth, Developments in Contract Law During the 1980's: The Top Ten, 41 Case W. Res. L. Rev. 203, 221 (1990) ("The 1980s, however, did not witness the death of contract. Academic attempts to merge contracts into torts in courses called 'contorts' failed to flourish.").
9. See Harold D. Lasswell and Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L.J. 203 (1943);
10. Myres McDougal, The Law School of the Future: From Legal Realism to Policy Science in the World Community, 56 Yale L.J. 1345, 1349 (1947).
11. The obvious example here is CUNY's law school (though there is some question about whether it has achieved its mission). See Matthew S. Steffey and Paulette Wunsch, A Report on CUNY's Experiment in Humanistic Legal Education: Adrift Toward Mainstream, 59 UMKC L. Rev. 155 (1991).
12. See Jonathan D. Glater, Harvard Law Decides to Steep Students in 21st-century Issues, NY. Times, Oct. 7, 2006, available at 〈http://www. nytimes.com/2006/10/07/education/07harvard.html?-r=3&oref=slogin&core= slogin〉 (last visited Aug. 11, 2008).
13. For a study of Harvard's effect on law school curricula more broadly (and on the fate of administrative law more specifically), see William C. Chase, The American Law School and the Rise of Administrative Government (Madison, Wis., 1982).
14. The story of the emergence of and the defense for the basic Harvard curriculum is well-told by William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York, 1994).
15. For a useful analysis of LaPiana's book, see Robert W. Gordon, The Case for (and Against) Harvard, 93 Mich. L. Rev. 1231 (1995) (concluding that "the decision of Harvard and schools like it to remain in their bare cell of 'technical' appellate doctrine, while all around them leading lawyers were busily transforming law practice and legal institutions, was a decision to avoid teaching and writing about all the great issues of the time-labor-capital warfare, the administrative revolution in government, the regulation of common carriers and public utilities, the 'trust' problem, the doomed attempt at Reconstruction of the defeated South, the populist agrarian revolts, and the progressive institution-building and regulatory responses to industrialization, urbanization, and immigration.,. [I]t was also a decision to refuse to train lawyers for-or even to acknowledge the existence of-all the new tasks that required an understanding of statutes, administrative records and procedures, financial structures of corporations, large-scale transactional work such as mergers and reorganizations, conducting trials, drafting documents, and arguing appeals.").
16. Several examples jump to mind: (1) NYU's law school recently added a course called "The Administrative and Regulatory State" to its first-year curriculum, see Symposium: Teaching Legislation: A Conversation, 7 N.Y.U. J. Legis. & Pub. Pol'y 1 (2003/2004) (with contributions by Rick Pildes, Elizabeth Garrett, William Eskridge, Chai Feldblum, Richard Briffault, and Richard Stewart);
17. the University of Illinois College of Law added a statutory interpretation-focused course to their first year, see M.A. Stapleton, Movin' on up: U of I adds profs, courses, Chicago Daily Law Bulletin, Apr. 21, 1995, at 3;
18. Vanderbilt recently added such a course to its first-year requirements, allocating a generous four units to the subject;
19. Georgetown University Law Center has had an alternative curriculum in place since 1991, which requires a course on Government Processes-and even students in the traditional curriculum can supplement their traditional courses with an elective in Government Processes or Lawmaking: An Introduction to Statutory and Regulatory Interpretation, see 〈http:www.law.georgetown.edu/ curriculum/jdprog.cfm〉 (last visited Aug. 11, 2008);
20. and Baylor University Law School, University of Connecticut School of Law, Syracuse University Law School, Washington & Lee Law School, the University of Pennsylvania Law School, Ohio State University's Moritz College of Law, and the University of California's Hastings College of the Law have had first-year requirements in legislation, regulation, or administrative law for some time, as well. All of these curricular innovations pre-date Harvard's recent reform.
21. See Alfred S. Konefsky and John Henry Schlegel, Mirror, Mirror on the Wall: Histories of American Law Schools, 95 Harv, L. Rev. 833, 848 (1982) (noting that every law school aspires to become "a little Harvard, if only in its mind's eye");
22. see also James W. Ely, Jr., Book Review, Law School: Legal Education in America From the 1850s to the 1980s.
23. By Robert Stevens, 59 Notre Dame L. Rev. 485, 493 (1984) ("[T]eachers are reluctant to deviate from the educational pattern of the most prominent schools. Any change in the law school world tends to originate at the top.").
24. See Todd D. Rakoff, The Harvard First-Year Experiment, 39 J. Legal Educ. 491 (1989).
25. Harvard's previous attempt to restructure the first-year curriculum was short-lived and self-consciously experimental; the changes were applied to some sections of first-years in Fall 1983 and were abandoned in Fall 1991. For analysis of why it failed, see id. at 496-99;
26. C. Ronald Chester, Reshaping First-Year Legal Doctrine: The Experience in the Law Schools, 20 FIa. St. U. L. Rev. 599, 611-14 (1993).
27. See Jim Milles, Harvard IL Curriculum Reform: Tool of the Devil?, Out of the Jungle: thoughts on the present and future of legal information, legal research, and legal education, available at 〈http://outofthejungle. blogspot.com/2006/10/harvard-1l-curriculum-reformtool-of.html〉 (last visited Aug. 11, 2008) (reporting on the reaction of Focus on the Family to the announcement of the inclusion of International Law in the required first-year curriculum). Other somewhat politicized reactions to the inclusion of International Law (but not the Legislation course) can be found at The Volokh Conspiracy's discussion of the reforms available at 〈http://volokh. com/posts/1160148379.shtml〉 (last visited Aug. 11, 2008).
28. See generally Stewart Macaulay, Law Schools and the World Outside Their Doors II: Some Notes on Two Recent Studies of the Chicago Bar, 32 J. Legal Educ. 506 (1982).
29. But see John O. McGinnis, Executive Power in the War on Terror, 146 Pol'y Rev. (Dec. 2007 and Jan. 2008), available at 〈http://www.hoover.org/ publications/policyreview/11893481. html〉 (last visited Aug. 11, 2008) ("Every aspect of American life has been increasingly subject to court-made rules.").
30. See Guido Calabresi, A Common Law for the Age of Statutes 1 (Cambridge, MA, 1982) (borrowing the term from Grant Gilmore, The Ages of American Law 95 (1976));
31. sec also J. Willard Hurst, Dealing with Statutes 1 (New York, 1982) ("More than constitutional law or common law, legislation and interpretation of legislation by lawyers, executive and administrative officers, and judges provide the basis for those parts of the legal order which enter most broadly into people's lives as well as into grand designs of public policy.").
32. The ramifications of these views on the law school curriculum generally were already observed by Clark Byse. See Clark Byse, Fifty Years of Legal Education, 71 Iowa L. Rev. 1063, 1068 (1986) ("As a result of this statutorification, a greater number of law school courses now deal with legislation and delegated legislation (in the form of administrative rules) than was true fifty years ago."). I should note here, of course, that Calabresi sees a central role for courts, statutorification notwithstanding. But at the very least, in light of legislation's centrality to the edifice of law, it is more than passing odd that most schools do not expose their students to it in any comprehensive way.
33. See generally Jeremy Waldron, The Dignity of Legislation (New York, 1999).
34. Much the same argument is rehearsed in Elizabeth Garrett, Teaching Law and Politics, 7 N.Y.U. J. Legis. & Pub. Pol'y 11, 11-12 (2003/2004).
35. See Anita Bernstein, On Nourishing the Curriculum with a Transnational Law Lagniappe (from the Association of American Law Schools' Workshop on Integrating Transnational Legal Perspectives into the First-Year Curriculum, Annual Meeting, Torts Panel, January 2006), 56 J. Legal Educ. 578 (2006) ("Triage assigns the most crucial material to Year One: Before you leave, the plan tells students and the audiences around them, that is, before you start forgoing the curricular for the extracurricular, here are some things we really want you to learn. We know you will probably tune out later, but for these items, please tune in.");
36. see also Garrett, Teaching Law, supra note 18 ("Law schools use their first-year curricula to tell their constituencies-students, regulators, donors, faculty, and other interlocutors-which aspects of legal education they think matter most.");
37. Rakoff, The Harvard First-Year Experiment, supra note 11, at 491 ("What [students] learn first about the law assumes primacy, in part simply because it is first, and in part because they meet it while in the state of psychological mobilization characteristic of first-year students.").
38. Thanks to Jim Brudney for pushing me to include this paragraph-and for helping construct it.
39. See Byse, Fifty Years of Legal Education, supra note 16, at 1068 ("[A]s the regulatory role of law has expanded, good lawyers have been required to become informed about, and sensitive to, the requirements of their business clients, who, in turn, have been required to develop similar knowledge and sensitivity to the demands of the law.").
40. In a recent survey of first-year curricula at "top 50" schools performed by the University of Illinois Law School's Curriculum Committee (and updated by UC-Hastings' Curriculum Committee in April of 2007), thirty-eight schools require at least three units of Constitutional Law in the first year. Next year, that number will be at least thirty-nine, as the UC-Hastings faculty voted to include it for the 2008-2009 academic year and thereafter. Harvard has no Constitutional Law requirement in the first year.
41. That module even made its way into her casebook. See Kate E. Bloch and Kevin C. McMunigal, Criminal Law: A Contemporary Approach: Cases, Statutes, and Problems, Appendix B (New York, 2005).
42. See Rakoff, The Harvard First-Year Experiment, supra note 11, at 492 ("A course in torts based on a casebook in torts and taught by a professor of torts would still make the concept of torts the master concept.. .no matter how many workers' compensation statutes or how many differing views of products liability were included.").
43. The University of Minnesota Law School once required a Legislation course but recently dropped it from the required first-year curriculum. When it removed the course, it took two compensating steps. First, it encouraged teachers of the basic courses to include some statutory materials and skills in their courses. But it also did something else: it attempted to structure its first-year "Research and Writing" sections to focus principally upon statutory material. This last strategy-of combining a statutory skills course with a writing skills course or a Lawyering course-might well prove to be successful. Yet, there are reasons to be concerned: First, even this strategy requires teachers to do double duty. If students are graded on writing, they may not be effectively learning statutory skills. Second, staffing challenges would seem to be quite formidable. Because there is a high turnover of writing instructors and because many have substantial career responsibilities beyond their teaching duties, it would seem quite difficult to achieve a steady and competent set of teachers for the course. As it stands, there is probably a dearth of professors trained to teach Legislation well; that problem might be magnified if a school tries to teach it in small groups, as Research and Writing usually is taught. Nevertheless, it might be possible to design uniform materials for small groups that really could accomplish this synergy well. Thanks to David Stras for conversations about Minnesota's program.
44. See, e.g., Garrett, Teaching Law and Politics, supra note 18, at 21.
45. There is a related concern that I have heard from both deans and professors who have watched these courses come and go from the first-year curriculum at other schools: staffing is very difficult. Usually, schools will adopt the course on the promise of a core group of faculty that they would be willing and enthusiastic to teach the course (and Harvard has an especially strong group who work and teach in these areas right now!). That can work if the faculty members making the promises can be taken off their other course duties (though at resource-scarce law schools, it isn't always easy to pull people off their basic teaching package). But as soon as that group of faculty leaves or retires, the school finds itself in a bind: these are hard courses to fill with adjuncts and it is difficult to find willing volunteers to teach the course (in light of student reception). So faculty either get drafted and diverted from courses they prefer to teach or the school gives up on the program. Of course, hiring new faculty is always a possibility, but it is probably true that rookie teachers have an especially hard time with students in the course and that there are a limited number of people on the market in any given year who can teach it well. Thanks to Phil Frickey for highlighting this concern for me-and for sharing his experiences with the course at Minnesota and Berkeley. In what follows, I explain why student dissatisfaction should not be taken especially seriously (and how some of it can be alleviated). Much of the dissatisfaction, I suspect, is contingent on the failure of many law schools to adopt the course as a core component of the curriculum. Once it gets widely adopted, students will see that it is as important as Civil Procedure and will take it as seriously. If that happens, more volunteers will be forthcoming from the faculty and more people will get trained to teach it well. If schools also took quantitative student evaluations less seriously (the reasons to do so will be left for another essay), many more professors would be willing to give the course a try. Admittedly, adopting the Legislation course in the first year requires perseverance and commitment on the hiring and teaching front. But the argument here is that there are enough benefits for students and future lawyers to make it worthwhile. For some anecdotal evidence that it can go well on the student satisfaction end when the course is broadly adopted, see Dean Kagan's report about the first year of Harvard's new Legislation course. See Elena Kagan, The Harvard Law School Revisited, 11 Green Bag 2d 475, 478 (2008) ("LegReg.. .was the most favorably evaluated of any course in the first-year program last year)."
46. See, e.g., Garrett, Teaching Law and Politics, supra note 18, at 21.
47. Students are also nearly three years away from practicing law, so one could argue that we needn't orient the first year towards practice at all. And one of the strongest arguments for making the Legislation course required is precisely that it is useful for practice! This is too clever by half. Of course we want our courses to reflect and prepare students for practice throughout their legal educations-and courses in the first year give students a foundation to develop their lawyerly skills throughout their three years of law school. The Bar Exam has no correlation with law as it is practiced and it needn't be remembered or built upon to succeed in practice. The same cannot be said of the skills (hoped to be) communicated in the bread-and-butter first-year courses-and the Legislation course.
48. There is also reason for skepticism that "teaching to the Bar" is effective at all (even with Bar-related courses being taken in the upper division). Empirical findings reported in this journal suggest that law school curriculum has a minimal impact on Bar Exam passage rates. See Douglas K. Rush and Hisako Matsuo, Does Law School Curriculum Affect Bar Examination Passage? An Empirical Analysis of Factors Related to Bar Examination Passage During the Years 2001 Through 2006 at a Midwestern Law School, 57 J. Legal Educ. 224 (2007).
49. Those states are: Colorado, Connecticut, Indiana, Kentucky, Minnesota, Mississippi, Missouri, New Mexico, Oklahoma, Oregon, Utah, Vermont, Washington, and Wyoming. Bar/Bri breaks down each state's "subjects tested" available at 〈http://www.barbri.com/app.aspx?cmd=als-BarReviewCourse〉 (last visited Aug. 12, 2008). To be clear, I don't think the fact that some states test the material on the Bar Exam is a good reason to include the subject in the first-year curriculum. But to the extent that the choice needs to be justified to students, alumni, and trustees, this information may serve useful purposes in pleading the case for change.
50. This is why I think the course works best as a second-semester first-year course. Some professors expressed to me that they'd like to see it in the first semester so that common law reasoning doesn't take hold from "Day One" of law school. The only way to combat the colonizing effects of the common law (and the students' sense that the course is weird), they say, is to put the course at the front of the experience. Because I think one needs some background in common law reasoning to see where judges are coming from in the Legislation course, I see the course as a better match for second-semester students. But I agree that it doesn't help student evaluations to have the course in the second rather than the first semester. And it would help Contracts and Torts teachers to have the course front-loaded, so they wouldn't have to defend all the "undemocratic lawmaking" students read all term long! Thanks to Bill Eskridge especially for engagement on this subject.
51. But see Kagan, The Harvard Law School Revisited, supra note 27.
52. Civil Procedure probably fits this mold too, at least for those who go on to litigate: widely disliked by students but appreciated retrospectively by (alumni) practitioners.
53. Jim Chen expressed this view to me too, though he is much more pessimistic than I am about our profession's ability to overcome these pathologies.
54. See 〈http://volokh.com/posts/1193858120.shtml〉 (last visited Aug. 12, 2008).
55. Here are ones that probably account for the vast majority of courses that come within the ambit of my discussion here: William N. Eskridge, Jr., et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy (4th cd. St. Paul. Minn., 2007);
56. Lisa Heinzerling and Mark V. Tushnet, The Regulatory and Administrative State: Materials, Cases, Comments (New York, 2006);
57. Linda D. Jellum and David Charles Hricik, Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies (Durham, N.C., 2006);
58. Peter L. Strauss, Legislation: Understanding and Using Statutes (New York, 2006);
59. Abner J. Mikva and Eric Lane, Legislative Process (2nd ed., Boston, 2002);
60. William D. Popkin, Materials on Legislation: Political Language and the Political Process (4th ed., New York, 2001).
61. Mike Dorf, in an e-mail to me dated December 11, 2007, confirmed that the experience at Columbia meshes well with my thesis in the text. Peter Strauss also confirmed the same indirectly in a question at an AALS panel on curricular reform in New York on January 4, 2008.
62. The best examples of this movement are Strauss, Legislation, supra note 37, which focuses on the Federal Railroad Safety Appliances Act of 1893 and the "fee reimbursement problem;" and Heinzerling and Tushnet,
63. The Regulatory and Administrative State, supra note 36, which focuses on risks to human life and health.
64. See supra note 9.
65. See sources cited supra note 37.
66. See Harvard Law School, HLS Faculty Unanimously Approves First-Year Curricular Reform, Press Release of Oct. 6, 2006, available at 〈http://www.law.harvard.edu/news/2006/10/06curriculum.php〉 (last visited Aug. 12, 2008).
67. 43' Eskridge, Cases and Materials on Legislation, supra note 37, covers all this material in its Chapter 1.
68. I supplement the casebook with "Our Undemocratic Legislative Process" from Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (New York, 2006). This chapter exposes students to the details of our processes and gives them critical tools to approach questions of institutional design.
69. Some of my articles that make their way into my curriculum include: Ethan J. Leib, Interpreting Statutes Passed Through Referendums, 7 Election L.J. 49 (2008);
70. Ethan J. Leib and David L. Ponet, This is a Job for Superdelegates, Legal Times, Feb. 25, 2008, at 50;
71. Ethan J. Leib and David L. Ponet, Representation in America: Some Thoughts on Nancy Pelosi, Gavin Newsom, Tim Johnson, and Deliberative Engagement, 16 The Good Society 1 (2007)
72. Ethan J. Leib and David L. Ponet, The Ethics of Representative- Constituent Relations, Findlaw's Writ: Legal Commentary, July 26, 2007, available at 〈http://writ.news.findlaw. com/commentary/20070726-ponet. html〉 (last visited Aug. 12, 2008);
73. Ethan J. Leib, Can Direct Democracy Be Made Deliberative?, 54 Buffalo L. Rev. 903 (2006).
74. Indeed, at Washington & Lee, where first years have taken "American Public Law Process" for about twelve years, the school doesn't offer an upper-level "Administrative Law" course, since their first-year requirement serves as the basic Administrative Law course. At the University of Pennsylvania, first-year students can take either Legislation or Administrative Law (or other statutory or regulatory electives). And students in Richard Stewart's NYU first-year course essentially get an Administrative Law course. Thanks to David Zaring, Matt Adler, and Troy Mackenzie for discussions and syllabi.
75. For a list of those states, see supra note 31.
76. Thanks to Mark Tushnet for emphasizing this point to me.
77. Heinzerling and Tushnet, The Regulatory and Administrative State, supra note 37.
78. Jason Solomon has pursued a related criticism: that the Heinzerling/Tushnet approach really doesn't work as well for lawyers as it might for public policy students. See Jason M. Solomon, Book Review, Law and Governance in the 21st Century Regulatory State Law, 86 Tex. L. Rev. 819, 844 (2008) (arguing that Heinzerling and Tushnet "have designed a book ideal for a third-year elective in law school or a required course at a public-policy school, but less than ideal for a required course in law school").
79. Again, Jim Brudney pressed me on this point and I am grateful for his input.
80. Obviously, if one thought this version of the course had the most important focus, one would have recourse to all the arguments against this strategy I offered earlier. But I'm skeptical that this is the best course for curriculum committees to sell to their faculties as a first-year requirement.
81. UC-Hastings is currently revisiting its approach to what it calls the "statutory elective." The University of Pennsylvania, NYU, Syracuse, the University of Illinois, and the University of Connecticut embrace a version of the elective approach as well.
82. I offer my version of the Legislation course as one in the package of electives. UC-Hastings also offers a basic Tax course as a statutory elective, though virtually all concede that it is sui generis and doesn't really serve some of the central purposes of a "Legislation and/or Regulation" class.
83. Anecdotal evidence surrounding Harvard's recent faculty vote reveals that beneath the unanimity about adding a Legislation course to the first year was little guidance from the faculty on the type of first-year Legislation course the faculty would be expected to offer. The task of coming to some kind of agreement about what to teach in these courses was effectively delegated to the group of faculty members who were doing the teaching. Although it may be sound to delegate the decision this way, there is much to talk about at this latter stage of curricular design. And it isn't obvious that only Legislation teachers should be part of that conversation.