Developing a New Course--"Elements of Law"

Last year the law faculty at Penn State approved the creation of a new concept course, to be named "Elements of Law".  Its description was  meant to be general, to provide faculty with some space to develop concepts and ideas for a course on "meta-principles" either of the applied or theoretical kind.

Elements of Law orients students to legal research and reasoning through caselaw, statutory interpretation, and legal history, processes, and institutions.  The course covers topics across many substantive areas of law, and addresses legal methodology as it arises in the legal profession. Penn State Law, Course Descriptions.

These efforts are in line with those of many other American law schools that  seek some sort of bridge course between the undergraduate studies of most of its students and the peculiar norm-world of law.  In many places, these sorts of efforts focus on the lawyer's craft, offering courses in statutory interpretation, legal methods, legislation, legislation, or the like.  In other places the focus is more theoretical,  focusing on theories of law, justice or jurisprudence. 

Few of these efforts, however, seek to integrate the elements of jurisprudence and interpretation within the larger context of humanities studies.  Law's strong connection to sociology, political science, international relations, philosophy, rhetoric, and logic, for example, are difficult to ignore.  To segregate Law, and the law student, from the richness of humanities, ill-prepares the law student to serve his clients and society.  Thus, without establishing the connection between the humanities and the more pragmatically oriented "craft" aspects of the first year curriculum, students will be unable to understand the that law and the lawyer's role in society is embedded.  The lawyer does not sit apart from the society she serves; neither should she be educated as if this were the case.

Establishing these connections is critical for the first year law student.  In shaping this course, then, I wanted to blend an admittedly necessary focus on the lawyer's craft and the "language" of the law with a strong humanities focus.  That focus will help the law student grasp the connection between law and world in which the lawyer practices and in which law makes itself felt. The heart of this approach centers on an integrated analysis of a case study--the movement from the legal protection of segregated education to the constitutionalization of racial integration in education.  This requires the students to work through law in its sociological, political, philosophical, jurisprudential, cultural and other elements, all of which were critical components in the movement from segregation to desegregation in public education. Law--as constitution, statute, and cases--is woven into the larger historical, sociological, and political context.  At the same time, the role of philosophy, political theory, rhetoric and discursive tropes are examined both for their contribution to the development of "law" and to their instrumental role in that progress.

This course is still very much a work in progress.  However,  I wanted to share my initial syllabus in hopes of garnering suggestions, reactions and the like.  Without further introduction, here it is:

ELEMENTS OF LAW
COURSE INFORMATION

Elements of Law orients students to legal research and reasoning through caselaw, statutory interpretation, and legal history, processes, and institutions. The course covers topics across many substantive areas of law, and addresses legal methodology as it arises in the legal profession.

READING ASSIGNMENTS:

Reading assignments are set forth below in the syllabus. Specific reading assignments will also be announced from time to time in class. Additional readings and problems may be added or substituted throughout the semester. Please bring readings with you to each class.

COURSE MATERIALS
REQUIRED:
1. William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation. 2nd Edition. West Publishers. ISBN-13: 9781599410784. List Price $43 from the publisher.
2. Additional materials set out in the syllabus below. These materials may be accessed either through ANGEL or directly from the Internet sources specified.

RECOMMENDED:
1. Materials may be identified from time to time in class as supplemental materials for further reading by students.

This is a graduate level course. The nature of the interaction between faculty, students and the assigned readings may be different from the pattern of engagement to which the undergraduate student might be accustomed. You are responsible for the readings. The faculty member’s role is not to summarize the readings but to work from them to lead the student to larger insights or application of the materials to the course themes. Understand that there is no guarantee that we will be able to cover in class all material assigned for that class session. We may not get through all the readings identified in the syllabus. Anticipate, therefore, that there may be occasions when you will have read ahead or read material not covered in class but for which you will be responsible. . . . .

GRADING

The course grade will be based on a take home exam. THE EXAM IS OPEN BOOK. You must work alone. You will have 24 hours to complete the exam from the time you pick it up. Students will be given the option of choosing the time you take the exam. The exam may be picked up on any day from the first day of final exams to 5:00 P.M. on the last day of the final exams period (Wednesday December 8, 2010 through Friday, December 17, 2010). . . .

LL.M. candidates will have 48 hours to finish the exam.

The awarding of grades is based on the curve system adopted by the faculty of the Law School and is subject to the limitations of those curve rules. I am required to adhere to this system. Students interested in discussing the curve system itself, its wisdom, or making proposals with respect to the system, are advised to consult their academic dean.

ATTENDANCE AND CLASS PARTICIPATION
Law School rules require me to notify students of my attendance policy. First year and introductory classes provide the basis for your legal education. It is important for you to attend class. Also, I remind you that material not in your readings and for which you will be responsible will likely be covered in class from time to time during the course of class discussion (and may find its way into the final exam). . . . . 

Class participation is required. All students are expected to be prepared for each class session (that is, to have carefully read the materials assigned). That does not mean that you are expected to ‘know’ any particular ‘answers.’ Participation does not mean having the ‘right’ answers to the questions we discuss. Participation requires only that you have read and thought about the materials to be discussed and that you are prepared to engage in a give and take about the ideas, problems and conundrums raised by the issues we investigate. I reserve the power to adjust your final grade to reflect what in my sole judgment will have been either outstandingly good or bad participation.

Class Notes and Recording of Class. Please feel free to get together with your classmates for studying and sharing notes. It is sometimes efficient. Take such notes as you desire. All classes will be recorded and all of the recordings will be posted on the course ANGEL site for access by any student enrolled in the course. You are authorized to use class recordings only for your own study and review. However, you may not copy or download any class recording. Copying, downloading, dissemination, publication in any format or alternation of any class recording constitutes unauthorized use, is not permitted, and is a violation of the Honor Code. No personal recording of class.

CONFERENCES

I maintain an open door policy. I encourage you to see if me should you have any questions or concerns. Sometimes I may not be in my office. That does not mean I am unavailable. I will try to be in my office for walk-ins Mondays and Wednesdays from 4-5:30 P.M. or otherwise by appointment.

Technology has made it easy to communicate.  Please take advantage of it.

You are encouraged to contact me by e-mail. I will respond promptly.


SYLLABUS
Preface to Materials

This “Elements of Law” course is meant to provide a general foundation for your law studies. It is meant to provide you with an introduction to the basic issues of this field of study and the basic approaches to a successful understanding of its nature. It is designed to provide students with the basic analytical and conceptual tools necessary to understand both the more specifically focused courses they will take and to provide the “big picture.” As the course description suggests, Elements of Law “orients students”. That orientation is grounded in core questions: “what is it that lawyers research?”; “How do lawyer’s reason?”; “what are the appropriate sources for information, reasoning, and the rules lawyers are meant to consider, and apply?”; “what is and how does a lawyer use opinions written by judges to justify a decision on a case, or statutes and regulations written by authoritative governmental bodies?”; “why should a lawyer care about legal history, processes, and institutions?”

For our purposes, Elements of Law will concentrate on five topics that are meant, together, to get to the questions raised: (1) What is Law; (2) Sources of Law, Hierarchies of Law and the Role of Law; (3) Division of Power: The Organization of the American Federal Union and the U.S. in a Global Context; (4) The Role of the Courts; (5) Application: An Introduction to Constitutional Interpretation; and (6) Application: An Introduction to Statutory Interpretation.


What is Law? The course starts with a short introduction to the basic issues that form the undercurrent of virtually all every lawyer will undertake throughout their career. For students seeking to spend the rest of their professional lives engaged in law, or law related endeavors, it pays to sketch out, early on in the preparation for that sort of career, the basic parameters to which their professional lives will be confined. Thus, the course starts with the basics—considering the question, what is law? The answer is more elusive than a student might first consider. And the answer is important, because the extent of the law determines the borders of the sorts of undertakings to which a lawyer will be asked to provide services for clients. For our purposes, we will consider first the basics of law under Anglo-American legal systems, and principally the common law. We then consider the issue more broadly by considering the extent to which norms and social ordering can be considered law or affects law. We then turn to contemporary forms of potential law—surveillance, monitoring and disclosure, that is, the governance role of assessment. Lastly we consider the most diffuse forms of law under the concept of “governmentality.” In this section we consider modern forms of governance.

Sources of Law, Hierarchies of Law and the Role of Law. Having considered the nature of law, the class will then turn to a consideration of the sources of law, that is, from where is law produced. We will consider the various forms that law may take—constitution, statute, treaty, judicial decision, administrative regulation, procedural rule, etc. Having considered the multiple sources of law, we then consider how one goes about ordering these sources. For that purpose we consider hierarchies of law—is it possible to rank order these sources of law to determine which one is more authoritative than others? For that purpose we are introduced to the idea of the state as a principal center of law, and its relationship with the law or rules created among states—international law. The point is to see if one can determine rules for applying law when more than more rule might serve that purpose. Lastly, this section considers can issue that most lawyers take for granted without stopping long enough to consider—does law (and law making) have a purpose? We will consider two principal schools of thought—that law is meant to memorialize the customs and habits of the population, or that law is meant to reform, fix or change people and their habits (for the greater good). Most people assume one or the other position (and many judicial opinions do this without stating their position). This has a significant effect on how one understands and applies law.

Division of Power: The Organization of the American Federal Union and the U.S. in a Global Context. Having considered the object of our study—law—we then turn to a consideration of those institutions our society has created to wield law. We will briefly review the basics of the organization of the American state. We engage in this review not for purposes of civics but to acquire a more sophisticated understanding of the places where law originates and the ways in which societies can divide the power to make, apply and enforce law. We start with the General Government, considering the division of its power into three “bundles”—(a) Executive; (b) Legislative; (c) Judicial. We then consider the way in which these power divisions are policed by introducing the concepts of separation of powers and checks and balances. We then consider the division of authority in states, and its relationship to federal power. Lastly we briefly consider the authority of administrative agencies under our system of government.

The Role of the Courts. With this section the student arrives at the heart of the course materials. Because we are lawyers, and we will spend a great deal of time defending the rights of our clients before tribunals set up for that purpose, it is critical to consider the role of courts and their relationship to law. Indeed, the law-courts relationship is at the heart of our common law system, though the power of that direct relationship has been softened in recent years. It follows that a lawyer ought to be intimately acquainted with the role of courts in law and its relationship to the legislative and executive power. The section starts with the idea of judicial review and its limits, that is, the nature of the judicial authority to “say what the law is.” The enhanced relationship between courts and law leads to the critical issue of law--the way in which courts engage with law. This will serve as an introduction to theories of judicial interpretation—if courts have broad power to say what the law is, how do they go about that business? This is important not merely because it helps with case reading; a sensitivity to judicial interpretation is crucial to helping a lawyer anticipate how courts will approach novel issues. Thus, the remainder of this section turns to theories of statutory interpretation. We start with the role of text and precedent and the controversy over resort to extrinsic sources (that us, to materials other than the text of the statute itself). We then consider whether constitutional interpretation presents a special case. For that purpose we consider the major schools of constitutional interpretation: originalist theories (textualism and original understanding), legal process theory, and evolutive theories of legitimate constitutional interpretation. We end by considering the role of stare decisis in interpretation.

Application I: An Introduction to Constitutional Interpretation. Having considered theories of legal interpretation in the abstract, this section presents these theories in action. For that purpose students will consider constitutional interpretation through the development of the constitutional law of racial discrimination and the application of the 14th Amendment. This section has two principal purposes, first to apply the theoretical materials of the prior sections and second to introduce students to the development of an important substantive area of law. We start with a consideration of the 14th Amendment—from idea to law—by briefly considering historical materials. We then look at the construction of the initial interpretation of the 14th Amendment in matters of race, and the move toward the constitutionalization of race discrimination through the development of the doctrine of “separate but equal.” We then consider the way in which “separate but equal was reconstructed over half a century and the abandonment of the “separate but equal doctrine” in school desegregation cases. We then chart the course of reform from desegregation to integration as a constitutional policy and consider the limits of judicial power to force the issue. What makes this study particularly interesting is that this century long process of interpretation, marked by substantial shifts in constitutional meaning, was accomplished without changing a word of the 14th Amendment.

Application II: An Introduction to Statutory Interpretation in context--legislation, federal and state power and the intervention of the courts. Time permitting, the last section of materials considers issues of interpretation of statutes. A number of problems of interpretation will be considered. These may include: considering the interpretation of statutes defining race at the time of Plessy, considering the appropriate interpretation of the Judiciary Act of 1890 considered in Marbury v. Madison, and considering the appropriate interpretation of the Florida elections statute at issue in Bush v. Gore. It is anticipated that students will take an active role in these exercises.

Overall Course Objectives. You will be introduced to a wide variety of materials throughout this course. The purpose of the materials is to expose the student to a number of important concepts that form part of virtually all law study. In addition, the student will be expected to begin to master methods of approaching law and legal studies that ought to prove useful in their careers. More specifically, by the end of the semester the student will be expected to have a working knowledge of the following:

(1) The differences between customary or common law, statutory or positive law, and emerging forms of governance;

(2) A working knowledge of basic sources of law (constitutions, statutes, treaties, etc.), hierarchies of law (the relationship between constitution, statutes, caselaw, treaties, etc.), and the role of law) and the role of law (as a function of state action or as an autonomous set of norms);

(3) A general knowledge of the legal basis for the organization of the American Federal Union and the U.S. in a Global Context; there will be a substantive component—the student will be expected to master the Non-delegation doctrine;

(4) A substantial knowledge of the role of the Courts in the American system—the extent of the judicial authority to say what the law is (that is the doctrine of judicial review)

(5) A working knowledge of how courts engage with the law—theories of judicial interpretation of statutory and constitutional law.

(6) A substantial knowledge of the substantive law of the 14th Amendment as it evolved from the 19th century and applied to racial segregation of public schools, including the constitutional limits of the remedial power of courts.

(7) Working knowledge of issues of statutory interpretation.

A detailed syllabus, with readings is provided below. Additional materials may be distributed. Please refer to the Angel site for readings other than those in the required text. Specific assignments will be posted ot the Angel site before each class.

Detailed Syllabus

I. What is Law

A. The Common Law
--Arthur R. Hogue, Origins of the Common Law (Indianapolis, Liberty Fund 1986 (1966)); Chapter 1 (3-29) and Chapter 8 (185-190).

B. Custom versus Statute: The Norm, The Social Order, The Legal Order
--Larry Catá Backer, Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 Boston College Third World Law Journal 291 (2000). READ pp. 291-305.
--John Henry Merrymen et al., The Civil Law Tradition: Europe, Latin America, and East Asia. Michie 1994. READ pp. 447-454; 476-485.
Optional Text:
--Hans Kelson, Pure Theory of Law (University of California Press, 1967); pp. 3-54.

C. The Administrative function.
--Edward L. Glaeser and Andrei Schleifer, The Rise of the Regulatory State Journal of Economic Literature XLI:401-425 (2003). READ ALL BUT SECTION 3.
--Larry Catá Backer, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley. Law Review of Michigan State University-Detroit College of Law, 204(2) Michigan State Law Review 327. READ pp. 333-353; 432-37.

D. Surveillance, Monitoring, Disclosure, Governmentality
-- Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007. READ pp. 101-138
Available at SSRN: http://ssrn.com/abstract=1081242
--Michael Reed, From the ‘Cage’ to the ‘Gaze’? The Dynamics of Organizational Control in Late Modernity, in Regulation and Organizations: International Perspectives 17 (Glenn Morgan & Lars Engwall eds., 1999). READ 28-31.
Optional Text
--Michel Foucault, Governmentality, in The Foucault Effect: Studies in Governmentality 87 (Graham Burchell, Colin Gordon & Peter Miller eds., 1991).

E. The Role of Law—What Roles Does Law Serve: Class Exercise
—law as an instrument of the state/government with authority to enact it; Law as the product of the national will.
--law as autonomous of government.
--Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008). READ 521-46.
--John Locke, Second Treatise on Government (Thomas P. Pearson, ed., New York: MacMillan 1952) Chapter XI (Of the Extent of the Legislative Power).
--Carl Schmitt, Legality and Legitimacy 18 (Jeffrey Seitzer trans., Duke U. Press 2004) (1932). READ pp. 17-26.

II. Sources of Law, Hierarchies of Law and the Role of Law in the United States

A. Sources of Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, other sources.
--K. Zweigert & H. Kötz, An Introduction to Comparative Law 3rd ed. Oxford 1998. Read pp. 249-255.
-- U.S. Constitution, Art. VI. Cl. 2.
--German Basic Law, arts.20-25; 31.
--Constitution of South Africa, arts. 2, 39, 146-150.

B. Hierarchies of Law Within the Domestic Legal Order and Between National and International Law
--Edward S. Corwin, The “Higher Law” Background of American Constitutional Law (Cornell U. Press 1955). READ pp. 72-89.
--Charles McIlwain, Constitutionalism, Ancient and Modern (Cornell U. Press, rev. ed. 1947).
--Medellín v. Texas, 128 S.Ct. 1346 (2008) READ MAJORITY OPINION and skim concurring and dissenting opinions).
--Pruneyard Shopping Ctr. V. Robins, 447 U. S. 74 (1980). Read pp 74-81. A

C. CLASS EXERCISE—Regulating Gasoline Consumption; applying concepts of Parts I & II.

III. Division of Power: The Organization of the American Federal Union and the U.S. in a Global Context

A. The General Government
1. Division of Power: (a) Executive; (b) Legislative; (c) Judicial
2. Separation of Powers and Checks and Balances
--Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579 (1952).

B. The Administrative Branches: The Non-Delegation Doctrine, An Introduction
--Mistretta v. U.S., 488 U.S. 361 (1988).

C. The States and the People
Popular referendums:
--K.K. DuVivier, Out of the Bottle: The Genie of Direct Democracy, 70 Alb. L. Rev. 1045 (2007). --Clayton Gillette, Is Direct Democracy Anti-Democratic?, 34 Willamette L. Rev. 609 (1998). READ 620-636.

D. Constitution, 9th & 10th Amendments
--Gonzales v. Raich, 5454 U.S. 1 (2005) (medical marijuana).

IV. The Role of the Courts:

A. The Doctrine of Judicial Review: Judicial Authority to “say what the law is”
--Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
--McColloch v. Maryland, 17 U.S. 316 (1819)
--Cooper v. Aaron, 358 U.S. 1 (1958)
--Edwin Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979 (1987).

B. CLASS EXERCISE—Are Officials required to follow Supreme Court Interpretation Beyond the Law of the Case?

C. How Courts Engage With Law: Theories of Judicial Interpretation
--Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 William & Mary Bill of Rights Journal 117 (2003). READ 152-72. Available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=379460

1. Theories of statutory interpretation
--William N. Eskridge, Jr., Philip P. Frickey and Elizabeth Garrett, Legislation and Statutory Interpretation (2nd ed., Foundation Press, 2006). READ Chapter 6.

2. The Role of Text and Precedent
--William N. Eskridge, Jr., Philip P. Frickey and Elizabeth Garrett, Legislation and Statutory Interpretation (2nd ed., Foundation Press, 2006). READ Chapter 7.

3. The Controversy Over Resort to Extrinsic Sources
--William N. Eskridge, Jr., Philip P. Frickey and Elizabeth Garrett, Legislation and Statutory Interpretation (2nd ed., Foundation Press, 2006). READ Chapter 8.

C. Constitutional Interpretation; A Special Case?
Readings: Application of Eskridge, et al. Chaps 6-8 to constitutional context
--James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
--Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (The University Center for Human Values Series; Princeton University Press (July 27, 1998) (ISBN-9780691004006))
--Poe v. Ulman (Harlan)
--John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, (1980) pp. 88-103. 
--Gary Minda, The Jurisprudential Movements of the 1980s, 50 Ohio St. L.J. 599 (1989)

D. A Note on Stare Decisis in Constitutional Cases and Under State Law
--Planned Parenthood of SE PA v. Casey, 505 U.S. 833 (1992) (federal)
--Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962) (state).

V. Application: An Introduction to Constitutional Interpretation in Context.
This long portion of the course will consider constitutional interpretation through the development of the constitutional law of racial discrimination and the application of the 14th Amendment. It introduces the student to textual interpretation and to the development of complex judicial glosses on text. This requires the students to work through law in its sociological, political, philosophical, jurisprudential, cultural and other elements, all of which were critical components in the movement from segregation to desegregation in public education. Law--as constitution, statute, and cases--is woven into the larger historical, sociological, and political context.  The role of philosophy, political theory, rhetoric and discursive tropes are explored examined both for their contribution to the development of "law" and to their instrumental role in that progress.

A. The 14th Amendment—From idea to law
Historical background materials

B. Initial Meaning:
--The Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873)
--Strauder v.West Virginia, 100 U.S. 303 (1879)
--The Civil Rights Cases, 109 U.S. 3 (1883)

C. Constitutionalizing Race Discrimination
--Plessy v. Ferguson, 163 U.S. 537 (1896)

D. Reconstructing the meaning of “separate but equal.”
--McCabe v. Atchison, Topeka & Santa Fe Railway, 235 U.S. 151 (1914)
--Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)
--Sipuel v. Board of Regents, 332 U.S. 631 (1948)
--Fisher v. Hurst, 333 U.S. 147 (1948)
--Sweatt v. Painter, 339 U.S. 629 (1950)
--McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950)

E. Abandoning “Separate but Equal” as Constitutional Doctrine
--Brown v. Board of Education, 347 U.S. 483 (1954)
--Bolling v. Sharpe, 347 U.S. 497 (1954)

F. Aftermath—From Desegregation to Integration; Race and Education
--Griffin v. County School Board, 377 U.S. 218 (1964)
--Green v. New Kent County School Board, 391 U.S. 430 (1968)
--Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1 (1971)
--Milliken v. Bradley, 4178 U.S. 717 (1974)
--Freeman v. Pitts, 503 U.S. 467 (1992)

G. The limits of Judicial Remedial Power
--Missouri v. Jenkins (Jenkins II), 495 U.S. 33 (1977)
--Missouri v. Jenkins (Jenkins III) 515 U.S. 70 (1995)

VI. Application: An Introduction to Statutory Interpretation
This long portion of the course looks at the different approach to statutory interpretation by examining a number of statutory issues . Each of these sections is designed to serve as a class discussion problem in which students apply the materials learned to each of these different interpretive contexts.

A. What is Race:
Problem—interpreting the Louisiana Statute under which Plessy was barred from the train.

B. Statutory Interpretation: Marbury and the Judiciary Act of 1790.
Problem—avoiding the constitutional issues in Marbury through alternative interpretation of the statute at issue.

C. The Saga of Bush v. Gore: litigation over the outcome of the 2000 Presidential Election and the interpretation of Florida’s Election Law.
Problem—the limits of court authority to interpret statutes: when does (lawful) interpretation become (illegitimate) legislation?
--Backer, Larry Catá, Using Law Against Itself: Bush v. Gore Applied in the Courts. Rutgers Law Review, Vol. 55(4): (2003).
--Backer, Larry Catá , Race, 'the Race', and the Republic: Re-Conceiving Judicial Authority After Bush v. Gore, 51 Catholic University Law Review 1057 (2002).
--The Cases: Bush v.Gore 531 U.S. 98 (2000).