I am happy to announce that Carolina Academic will soon be publishing my text, tentatively titled Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1). Law embedded within systems in the United States tends to be mystifying to everyone, even individuals trained in law elsewhere. By the end of the usual course of U.S. legal education most students would roughly know it when they encounter it. But they would be hard pressed to explain it either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists. There are a number of distinct kinds of law in the United States, and each of them are deeply embedded within their own systems of generation, interpretation and application, which then somehow work together It made sense, then, especially as a century of legalization forces more and more people world wide to bump up against aspects of that system, to try to find a way to explain law, the systems within which it is embedded, and the way that this embedding substantially defines the character of both.
The book is based on insights from teaching first year students, foreign lawyers and students of politics and policy (Elements of Law Series), at Penn State. The course had a short and controversial history there but engagement with the course in the face of student confusion over the value of the course and its content within law studies (e.g., here) began my thinking about how one could go about thinking through the systemic element in the distinct elements of law (common law, equity, statute, administrative regulation, public-private hybrids, and societal governance), their systemic qualities (that distinguish each) and their quite distinct relationship with systems of government. Indeed, that fundamental relationship between systems of law and systems of government, so essential to the understanding of how law "works" in the United States, is rarely centered in legal studies.
This post includes the table of contents of the work along with the more or less official book description. Future posts will set out more detailed descriptions of each chapter and a brief summary of the chapter. An initial circulation draft Teacher's Manual will also be posted in a series of future posts. Comments welcome for all.
All contents posted on line may be accessed here:
Summary of ContentsContentsPrefaceAcknowledgementsPart I: What is Law? An IntroductionChapter 1. Roadmap for the Study of the Ideology and Systems of U.S. LawChapter 2. The Cast of Characters, Institutions, and Forms: Reading Justinian’s InstitutesPart II: U.S. Law: System and Sub-SystemsChapter 3. Law Articulated by Courts: The Common LawChapter 4. Law Articulated by Courts: EquityChapter 5. Law Articulated by Legislatures: Statutory LawChapter 6. Law Articulated by Regulatory Agencies: The Administrative FunctionChapter 7. Beyond Law: The Effects of Law in Social Norms, Contract Communities, and Disclosure RegimesPart III: Hierarchies of Law and Governance: The Relationship Between People, Law, and GovernmentChapter 8. From Law to the State and Its Government ApparatusChapter 9. The Relationship of Law and the Government of the State: Role of Law/Rule of LawChapter 10. Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, and Other SourcesChapter 11. Hierarchies of Law Within the Domestic Legal Order and Between National and International Law Reflecting Governmental OrderPart IV: Institutional Architecture of Law and Governance: The Law of Government of the United StatesChapter 12. The General Government: Separation of Powers and Checks and BalancesChapter 13. The Administrative Branches: The Non-Delegation Doctrine, An IntroductionChapter 14. The People Making LawChapter 15. The Legal Structures of Federalism: The 9th and 10th Amendments of the Federal ConstitutionPart V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and LegitimacyChapter 16. The Doctrine of Judicial Review: Judicial Authority to “Say What the Law Is”Chapter 17. The Role of the Courts: The Techniques of Judicial InterpretationChapter 18. The Role of the Courts: Stare Decisis in Constitutional Cases and Under State LawTable of Cases and StatutesTable of AuthoritiesIndex
"Elements of Law and the U.S. Legal Systems
Based on insights from years of teaching first year students, foreign lawyers and students of politics and policy, this problem oriented book guides students through a comprehensive study of the U.S. legal system. The book starts with the conceptual framework of U.S. Law. It then guides students through the distinct sub-systems that in the aggregate constitute law in the United States: common law, equity, statutes, administrative regulations, and public-private hybrid governance. In each case it guides students through what makes each sub-system distinct with respect to its forms and practices. The student is then guided to the relationship between law and the institutions of government that create and administer law, and the legal structures for the administration of law in the United State, including the relationship between national and local law, between U.S. and international law and legal obligations, and the extent of the power of legislatures and the people to make law. Drawing these materials together, the last section considers the role of the courts in the application of law: judicial review, methodologies of interpretation, and legitimacy.
The book is especially useful for entering LL.M. students and foreign students entering U.S: J.D. programs. It can be used in lieu of the traditional materials in legal English or similar approaches. Its value lies in its focus on teaching the student how to think like a U.S. lawyer while introducing the basic concepts and presumptions about how law, government and the courts interact works that are critical to facilitate ease of the study of the substantive law of the U.S. Students lean the difference between common law, equity, statutes, administrative regulation, and the ways in which each of these are administered through the courts. The materials also introduce the scope of coverage of each and integrates the methodology of lawyering disputes with the particular form of law involved. The mysteries of statutory interpretation are revealed and students are provided substantial opportunity to practice their skills through problems and discussion.