(From Cory Robin, The First Counter-revolutionary The Nation, October 19, 2009)
In 2010, the faculty at Penn State Law 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.
I taught the course for the first time in the Fall 2010 term, following the initial syllabus I prepared. I discussed the initial efforts to structure the course at Larry Catá Backer, Developing a New Course--"Elements of Law"Law at the End of the Day, August 16, 2010.
It should come as no surprise that the reception of the course by students was mixed. For students looking to be trained in a craft, and expecting nothing more than the mechanics courses they believe will produce the required training to get them to the first job, the course was a bit of a shock. But interestingly, there were a number of students who took to the course. Some were interested immediately. Most were drawn into the materials only after several weeks when (as one student told me after the course) they figured out how the class was different and how it fit in with the rest of their curriculum. Several indicated that the course would have been completely incomprehensible without the guidance of the narrative description of the course provided in the syllabus. They expressed the wish that the description be expanded. because there is little outside the course to draw on, a detailed conceptual framework and analysis of structure is essential for the course to make sense. Equally useful was the list of class objectives. However, it is noteworthy that even with these aids, there were several students who complained that there was not enough in the materials to make the structure of the course easily accessible. This, in part, might reflect the common culture of law school course pedagogy, in which the utility of a course directed in the short term to the bar and in the middle term to the first job, is an important way that students weigh the value of a course (and therefore the amount of time that ought to be devoted to its mastery).
(From Zach Lowe, NALP Employment Numbers: What to Believe?, The AmLaw Daily, May 20, 2010)
Overall, I found that students first approached the class with a bit of trepidation. The class was so different. The exercise of mastering doctrine, interpretation and then understanding it in its social context proved difficult at first. Many began to understand the power of understanding the “why” of a class beyond the usual and narrow doctrinal approaches. More importantly, they began to understand law instrumentally—not from the position of passive recipients of law but as potentially active agents of the development of law. Most students, to the extent they got this far, began to realize this only after the class was over, especially when they took their second semester course. That was the most gratifying part of teaching the course--that students found it easier to approach their more traditional classes, and some felt freer to explore the issues raised in those classes in more sophisticated ways.
I also found that parts of the course could have been refined. In particular, the first part of the course needed some tightening up. In particular, I thought that the distinctions between civil law and common law origins and sensibilities needed to be drawn out more carefully. The connection between these forms of law structuring, and the social, political, economic and cultural contexts of law and state organization was needed to be made more explicit. I also found it useful to make more explicit the consideration of the relationship between law, the state and its government. For law students in the United States, that connection provides a foundation for considering the most important relationship--between law, the courts, and the legislature.
I still believe in the utility of a course that seeks 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.
But the Carnegie Report (Educating Lawyers: Preparation for the Profession of Law. William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, Lee S. Shulman. San Francisco: Jossey-Bass, 2007) reminds us that it is also important to find a space where law students can 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.
There was a side benefit as well. By focusing the bulk of the class on the case study of the 14th Amendment and the movement from segregation to desegregation of education, I was able to move race to the center of discussion about a foundational element of U.S. constitutional law that has had tremendous effect beyond the usual horizons of the law student’s horizons. This was particularly useful as a way to get students who usually avoid such discussion to engage with these issues in ways that helped them see the connection between the jurisprudence, sociology, politics, philosophy and (pseudo) science of race and the structures and discourse of law. This for me was the most rewarding aspects of the class.
(The Russell Daily News (Russell, Kansas), Monday, May 17, 1954. Enlarged version Historic Events Newspaper Collection, Serial and Government Publications Division (84); reproduced in Library of Congress, "With an Even Hand": Brown v. Board at Fifty).
The course remains a work in progress. In a way, it is also a mirror of the great changes and the extent of the failures of consensus, that are now reflected in the contradictions of the U.S. domestic legal order as it strives to move from what it was to what it might become.
Set out below is the revised version of the introductory course materials and syllabus I plan to use this coming semester. Though the course is taught as a semester, it can also be taught in shorter format. Comments and reaciotns welcome.
ELEMENTS OF LAW
Larry Catá Backer
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 concern themselves with?”; “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?” All of these questions point to the fundamental question of our field: “How does law work?”
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—the concept of law. 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 that will define their professional lives. The first section poses the question—What is law? The answer is more elusive than a student might first consider. And the forms that efforts take to try to find an answer can be as important as the answer itself. The substance and form of law adopted is important, because these prove the borders of the lawyer’s field. These definitions suggest those areas of effort where the work of the lawyer is authoritative and draws a line between that and other fields where the lawyer does not speak with authority. In its simplest form these definitions and border-drawing exercises determine extent of the law determines the borders of the sorts of undertakings to which a lawyer will be asked to provide services for clients. Lawyers (courts and legislators as well for that matter), for example, do not give theological advice and ought not to give authoritative pronouncements on economics or aesthetics.
For our purposes, we consider whether the answer to the question depends on the character of the institution producing “law.” We will start, then, with a simple identification of the basic cast of characters, institutions and forms that mark the law as distinctive. This section then introduces students to the four most common forms of law in the United States. The first is law articulated by the courts—corresponding roughly to what remains of the common law. The second is the law articulated by the legislature, what most people have commonly come to understand as “law”. The third is the law articulated by regulatory agencies, the increasingly important set of “rules” promulgated by agencies on the basis of power delegated to them by the legislature through statutory “law.” Fourth, students will be introduced to the most troublesome aspect of “law”—law beyond law, that is rules articulated by non-governmental actors. These are commonly understood as social norms and have traditionally been defined as something other than law. We will consider the reasons for this distinction from a formal and functional perspective. We will also look to social norms for a related form of social control, a form used by both state and non-governmental actors—including forms commonly understood as techniques of enforcement with substantive effect, for example, surveillance, monitoring, disclosure, evaluation and governmentality. Each of these forms of law has its own distinctive character, form, and properties. Each is produced in different ways and is applied differently by different organs of government.
Sources of Law, Hierarchies of Law and the Role of Law. We started by examining the concept law by reference to the places where it may be produced, and the way that the place where law is produced affects its character. In this section we place these different forms of law within a government, that is we introduce the concept of the state to the concept of law and consider the nature of the relationship between them. That is, the student should consider how these distinct forms of law relate to each other within a functioning state. Just as law is organized as a system in which distinct forms of law have superior or inferior power to affect behavior, so too the effectiveness of law, and the extent of its legitimate application is determined to some extent by the nature, character and power of the institution that produced it.
Moreover, the student ought to begin to think about what goes into the construction of a coherent system of law managed by a government, focusing not on an individual “law” but on law as a system. Issues of legal hierarchy and the systematization of law are the focus of this section of the course. For that purpose the class will consider hierarchies of law—is it possible to rank order these sources of law to determine which one is more authoritative than others; what is the relationship between constitutions, statutes, treaties, regulations, judicial decisions, other sources of law? The student will consider how political communities rank laws—from constitution to statute, judicial decision and regulation. The student will also consider the underlying normative framework that produces these vertically arranged systems of law. The student will understand the theories used to justify hierarchy and explain why, for example, constitutional law is superior, or of a different character, from ordinary law. Likewise the consequences of the creation of these hierarchies are explored.
These relationships are most pronounced where an individual seeks to invoke state, national and international law. This section introduces the student to the issues of legal hierarchy in the context of the state system on which the contemporary global legal and political order is founded. The student will examine the relationship between domestic and international law in relation to the obligation of the state and the obligations of individuals.
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. The first assumes that law is an instrument of the state/government with authority to enact it. At its greatest level of generality, this view posits that law is “positive” and “instrumental.” Law is the conscious product of the national will directed toward to the attainment of a particular behavior controlling objective. Without government there can be no law. The second assumes that law is autonomous of government. Law exists whether or not there is a government. In this guise law is understood either as (1) a reflection of the common beliefs and traditions of the people (custom), or (2) the implementation of higher moral norms (natural, religious, rationalist or international customary norms).
Division of Power: The Organization of the American Federal Union and the U.S. in a Global Context. Having thus examined the nature of the object of our study—law and its systematization—we 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 a civics lesson 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 subsidiary units of government in the United 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 focus is on institutional legitimacy and the evolution of principles of governance that have become the foundation of the American Republic.
The enhanced relationship between courts and law leads to the critical issue of law--the way in which courts engage with law. The student will consider judicial engagement with law in two broad respects. First, the student will consider the ways in which courts may serve as a site for the development or discussion about law. This is a theoretical consideration of the use of courts not merely as the formal site for the resolution of disputes arising under law, but also of the use of courts as a political, social and cultural institution. Second, and more importantly for lawyers, students will be introduced 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 interpretation. The initial examination concentrates on statutory interpretation. The specific focus is on two fundamental approaches to interpreting statutes: textual and intentional. The first looks to the text on which a dispute is grounded. The second looks to the intention of the drafters of the stature as a guide to determining how a statute ought to be interpreted. Both seek to provide a basis for creating methods of interpretation that are institutional and not personal. Textual approaches tend to be understood as formalist. Intentional approaches, or approaches that look to the way the statute functions in relation to the intent of the drafters, are sometimes characterized as functionalist. Two points will be woven into the discussion:
1. Reliable versus unreliable legislative history. We cover that as we go through the Eskridge materials. But I must admit I take a rather unorthodox position. I argue that all history is both reliable and unreliable (and discuss Scalia's position in that context), and then explore why this is so with respect to different types of historical artifact. I then spend more time examining why some forms of legislative history is privileged and other forms marginalized (e.g., Thomas Jefferson versus Sally Hemmings; Federalists versus Anti-Federalists; Congressional materials versus newspaper interviews, etc.). We will discuss tools but also the class, gender, and historical bases for choosing some forms of information as authoritative and others as not, and their importance to the practicing lawyer.
2. Normative canons. Normative canons are useful interpretive devices. We touch on them, but as interpretive instruments rather than as something "true of itself." Discussion is included in this "toolbox" section of the materials. But students will not be asked to dwell on them except as important devices for "speaking" to judges in the particular language that may move them to a particular way of engaging with a case. What is emphasized is the tradition and the power of patterned thinking that are represented by these canons.
The materials then consider whether there is something different or additional about constitutional interpretation. If statutes are the product of the legislature, a co-equal branch of government, and the constitution is an expression of popular sovereignty, then should the courts approach constitutional interpretation the same way they approach statutory interpretation, or even the interpretation of prior precedent? While formalist and functionalist frameworks dominate constitutional interpretation, additional issues, related to the character of the Constitution as a foundational instrument, are also important. This will require 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.
Students will be introduced to originalist and evolutive theories of constitutional interpretation. These supplement the formalist (textual) and functional (intentional) methods of statutory interpretation. The contrasts between the two approaches has significant effects on the way ion which people understand the nature of the Constitution as well as the appropriate way to “read” it. Students will spend time considering the conflict between these approaches. In that respect, “living constitution” approaches (for example the common or customary law approach of David Strauss) is juxtaposed to immutable meaning approaches (for example Justice Scalia and his civilian approach to constitutionalism). Both approaches are used to suggest the plausibility of structural approaches to constitutionalism. The point is to drive home the materials form the first section--that tradition matters--a common law sensibility may color one's approach to constitutionalism in ways that are different from a civil law (or legislative supremacy) approach. The point emphasized is that approaches like that of Justice Scalia's conservatism may actually be radical from a historical perspective; unless one accepts the premise that the adoption of the Constitution represents a break with the Common Law traditions of the U.K. The living constitution advocates might actually come closest to a conservative approach to the constitution within the context of our original common law political society. But the living constitution approach may also overstate the importance of the constitution as framing all issues of right in political society. But in the end, consistent majorities construct the legal reality that is then taught as gospel to the next generation of lawyers, political people, and the masses. . . . or there is crisis. The resolution of these issues, still highly contested, is left for the student.
Statutory interpretation provides a gateway to a critical issue: to what extent are the court’s interpretation authoritative? If interpretation is based on a focus on text and intent, and if courts have a significant voice in providing definitive interpretation of those statutes, then what is the obligation of courts to follow the interpretations made by courts in other decisions. That issue, the role of stare decisis in interpretation, takes three forms. The first involves the obligations of lower courts to apply the holding of superior courts within a single judicial system. Must the federal district courts follow the decisions of federal courts of appeal; must they follow only those decisions of federal appellate courts in the appellate district to which they belong? The second involves the obligation of courts in one judicial system to apply the holdings of courts in other systems. Must the federal courts follow the decisions of state courts; must state courts follow decisions of federal courts; do either federal or state courts have an obligation to apply the interpretation of international tribunals? The third involves the obligations of courts to follow their own prior interpretations. Must the Supreme Court apply its own holdings to cases it considers; may a court hear a case “fresh” without the obligation do apply the rules it has announced in prior cases; does the answer depend on whether the issue to be decided is a matter of statutory, case law or constitutional interpretation?
Application: An Introduction to Constitutional Interpretation. Having distinguished among different 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 first consider whether constitutional interpretation presents a special case. For that purpose we will apply the major schools of constitutional interpretation that were studied in the prior section: originalist theories (textualism and original understanding), legal process theory, and evolutive theories of legitimate constitutional interpretation.
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 (If there is time): An Introduction to Statutory Interpretation. 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, social norms, and emerging forms of governance; the sources of each; and the political theories underlying each;
(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, and the similarities and differences between them.
(6) A working knowledge of the three aspects of stare decisis.
(7) 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.
(8) Working knowledge of issues of statutory interpretation in its legal, political, and methodological aspects.
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 to the Angel site before each class.
1. What is Law
A. Introduction: The cast of characters, institutions and forms --LLEWELLYN, THE BRAMBLE BUSH.
B. Law Articulated by Courts: The Common Law & Equity
--LAW: Arthur R. Hogue, Origins of the Common Law (Indianapolis, LibertyFund 1986 (1966)); Chapter 1 (3-29) and Chapter 8 (185-190). --EQUITY: Kristin A. Collins, “A Considerable Surgical Operation”: Article III,
Equity, And Judge-Made Law In The Federal Courts, 60 Duke L.J. 249 (2010) READ PP. 1-9 of the Westlaw Version (249-271 of the original).
C. Law Articulated by Legislatures: Statutory Law
--JUSTINIAN, INSTITUTES (c. 570 A.D.) READ J.1.1-1.2
--John Henry Merrymen et al., The Civil Law Tradition: Europe, Latin America, and East Asia. Michie 1994. READ pp. 447-454; 476-485.
--The U.S.—where statute and custom meet:
Montana Code Annotated 1999
(1-2-103. Statutes in derogation of the common law -- liberal construction. The rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the statutes of the state of Montana. The statutes establish the law of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect their objects and to promote justice. ) http://data.opi.mt.gov/bills/mca/1/2/1-2-103.htmOptional Text:
--HANS KELSON, PURE THEORY OF LAW (University of California Press, 1967); pp. 3-54;
(http://books.google.com/books?id=9mY4nYPu59kC&dq=%22what+is+law%22&printsec=frontcover&source =in&hl=en&ei=4VrrS6ThGY_98AayuNi_BA&sa=X&oi=book_result&ct=result&resnum=13&ved=0CFEQ6AEwDA ).
--James G. Apple & Robert P. Deyling, A Primer on the Civil Law System (1994- 95). Available http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf.
D. Law Articulated by Regulatory Agencies: 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. Available http://www.economics.harvard.edu/faculty/shleifer/files/rise_reg_state.pdf. --Larry Catá Backer, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley. Law Review of Michigan State University-Detroit College of Law, 2004(2) Michigan State Law Review 327. READ PARTS II and V.B. (pp. 333-353; 432-37 of published version). Available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=508802.
E. Law Beyond Law: Social Norms; Surveillance, Monitoring, Disclosure.
--Melvin Eisenberg, Corporate Law and Social Norms, 99 Colum. L. Rev. 1252 (1999). READ Section I--PP. 2-7 of the WESTLAW VERSION, or 1257-1264
-- Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. INDIANA JOURNAL OF GLOBAL
LEGAL STUDIES, Vol. 15, 2008. READ PARTS I-V (pp. 101-138 in SSRN version); 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.
II. Hierarchies of Law and Governance: Sources and Uses.
A. The State and its Apparatus.
-- Foucault, Michel. 2007. Security, Territory, Population, Lectures at the Collège de France 1977-1978. . Graham Burchell, trans. New York: Picador Palgrove Macmillan. READ pp. 87-110; 115-120.
B. Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, other sources.
--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).
-- U.S. Constitution, Art. VI. Cl. 2. Available at
http://www.usconstitution.net/const.pdf. --German Basic Law, arts.20-25; 31. Available
http://www.iuscomp.org/gla/statutes/GG.htm. --Constitution of South Africa, arts. 2, 39, 146-150. Available
C. Hierarchies of Law Within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order
--Larry Catá Backer, Inter-Systemic Harmonization and Its Challenges for the Legal- State, in FICHL Publication Series No. 11 (2011): The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker; Torkel Opsahl Academic EPublisher, Oslo, 2011). Available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1789190.
--Medellín v. Texas, 128 S.Ct. 1346 (2008) READ MAJORITY OPINION and skim concurring and dissenting opinions). Available http://www.law.cornell.edu/supct/html/06-984.ZS.html.
--Pruneyard Shopping Ctr. V. Robins, 447 U. S. 74 (1980). Read pp 74-81. Available http://supreme.justia.com/us/447/74/case.html.
D. The Relationship of Law and the Government of the State—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 either as (1) a reflection of the common beliefs and traditions of the people (custom), or (2) the implementation of higher moral norms (natural, religious, rationalist or international customary norms)
--Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008). READ PARTS I & II (pp. 521-46 of the publishedversion); Available
--John Locke, Second Treatise on Government (Thomas P. Pearson, ed.,
New York: MacMillan 1952) Chapter XI (Of the Extent of the Legislative
--CARL SCHMITT, LEGALITY AND LEGITIMACY 18 (Jeffrey Seitzer trans., Duke U. Press 2004) (1932). READ pp. 17-26.
E. CLASS EXERCISE—Regulating liability for medical innovation; applying concepts of Parts I & II in a law and policy context.
--Teams assigned to represent a number of clients; presentations exercise details and team assignments on Angel.
III. Institutional Architecture of Law and Governance: The United States and Law Making
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).
--Peter Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM.L.REV. 573 (1984)
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). Full version available http://www.law.cornell.edu/supct/html/03-1454.ZS.html.
V. The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy:
A. How Courts Engage With Law: 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. Available in “pdf” format at
--Berreman v. West Pub. Co., 615 N.W.2d 362, Minn.App., 2000 (edited).--Marvin v. Marvin, 8 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815, 1976 (edited).
B. 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).
C. CLASS EXERCISE—Are Officials required to follow Supreme Court
Interpretation Beyond the Law of the Case?
D. How Courts Engage With Law: Theories of Judicial Interpretation
--Richard Posner, Statutory Interpretation—In the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800 (1983) (READ pp. 817-22)
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.
--John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001) (READ pp. 1, 3-7, 16-22).
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.
Stephen Breyer, On the Uses of Legislative History in Interpreting
Statutes, 65 S. CAL. L. REV. 845 (1992).
E. 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).
F. Class Exercise: Statutory Interpretation
-- William Eskridge, Dynamic Statutory Interpretation 135 U. PA. L. REV. 1479 (1987) READ Part II (pp. 1497-1538 of the published text; Pages 8-23 of the Westlaw version provided).
V. Application: An Introduction to Constitutional Interpretation.
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 will require 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. Constitutional Interpretation; A Special Case?
Readings: The section applies Eskridge, et al. Chaps 6-8 to constitutional context, with the addition of other readings identified below
--Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 WILLIAM & MARY BILL OF RIGHTS JOURNAL 117 (2003). READ INTRODUCTION AND PART II (pp. 117-28; 152-72). Available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=379460
1. Originalist Theories: Textualism a. Word textualism
b. Clause bounded textualism2. Originalist Theories: Original Understanding
c. Holistic textualism (the document)
d. Structural textualism (text in light of overarching principles)
--James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893).
-- William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976)
--Poe v. Ulman (Harlan)
a. Social-cultural plain meaning—Intention of the Founders
b. Original Purpose (interpretation the best reflects Framers’ original purposes)--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)) READ pp. 3-18 and 23-47.
3. Legal Process Theories
--John Hart Ely, Democracy and Judicial Review, 28 STANFORD LAWYER 3-9 (Spr./Sum. 1982) (printed as Vol. 17(1)).
4. Evolutive Theories
a. Republican Theoriesb. Anti-Subordination Theories (Feminist and Critical Race Theories) c. Customary Law Theories
--Gary Minda, The Jurisprudential Movements of the 1980s, 50
OHIO ST. L.J. 599 (1989)
--Poe v. Ullman, 367 U.S. 497 (1961) (Harlan dissent)
--Optional: DAVID STRAUSS, THE LIVING CONSTITUTION (New York: Oxford University Press 2010).
B. The 14th Amendment—From idea to law Historical background materials
--14th Amendment, text
--Robert Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil
War and Reconstruction, 61 NYU L. Rev. 863 (1986) READ HANDOUT VERSION PAGES 1-11, 19-22, 24-30.
--Eric Foner, The Strange Career of the Reconstruction Amendments, 108 Yale
L.J. 2003 (1999). READ ALL 4 PAGES.
--Poe v. Ullman, 367 U.S. 497 (1961) (Harlan dissent)
C. Developing 14th Amendment Frameworks--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)
D. Constitutionalizing Race Discrimination
--Plessy v. Ferguson, 163 U.S. 537 (1896) --Thomas Zimmerman, Background to Plessy --The Separate Car Act:
“all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train or by dividing the passenger coaches by a partition so as to secure separate accommodations. . . “ The penalty for violation was $25 or 20 days in jail.
E. 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)
F. 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)
G. 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, 418 U.S. 717 (1974)
--Freeman v. Pitts, 503 U.S. 467 (1992)
H. 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 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? Applying statutes defining race to solve an issue of inheritance.
B. 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):1119 (2003) READ PART III )pp. 1125- 1170). Available http://ssrn.com/abstract=410242.
--Backer, Larry Catá , Race, 'the Race', and the Republic: Re-Conceiving Judicial Authority After Bush v. Gore, 51 CATHOLIC UNIVERSITY LAW REVIEW 1057 (2002) READ pp. 1066-1076.
--The Cases: Bush v.Gore 531 U.S. 98 (2000). Available http://www.law.cornell.edu/supct/html/00-949.ZPC.html.
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