Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum

(Pix (c) Larry Catá Backer 2013)

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. I taught it again in 2011 and provided a self analysis of the course at Larry Catá Backer, "Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum, Law at the End of the Day, July 23, 2011. It should come as no surprise that the reception of the course by students was mixed.  "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." (Backer, "Elements of Law" Course 2.0).

I am teaching "Elements of Law" again this coming semester.  I decided to revisit the syllabus to see if I could make better sense of the course for students--that is to make it more relevant to the experience and expectations of students while providing significant and coherent value added to the law school education experience. 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 designed to be taught over a semester, it can also be taught in smaller segments. Comments and reactions welcome. The entire syllabus may be ACCESSED HERE.

In addition, I will be developing lecture notes to go along with the readings assigned for each class.  These follow.   The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

One of my great frustrations in  developing this course has been what I consider to its its lack of  apparent coherence with the rest more or less conventional parts of the first year curriculum. The course description approved by the faculty is ambiguous at best, and meaningless at worst.  A capacious and relatively empty vessel, "Elements of Law" can permit a faculty member with enough energy and interest fill it with something perhaps new and innovative, or it might provide a space to fill with vapid and duplicative of aspects drawn from the rest of the conventional first year curriculum. Students are likely to sense either, or anything between and react accordingly. Indeed, the great danger of courses like "Elements of Law" is that id they focus solely on the mechanics of statutory construction, judicial reasoning and the like, it will only duplicate the core pedagogical objectives of the other first year courses, but completely detached from the teaching of any substantive area of law.  The course thus sits in the pedagogical ether, mechanics without a grounding in substance, at a time when students clearly require some sort of anchoring of knowledge.  Moreover, as I suggested in prior year self assessments, however this course is conceived, it will have to convince students of its relevance at a time when course allocation time is scarce and market pressures for employment militate against "fluff", at least as students (and potential employers) see it.  That last point requires an unconventional course, such as "Elements," to be able to add value measured both by its contribution to a rigorous standard of substantive quality and a high level of relevance for the integrated program of study leading to a flexible but useful J.D. This is important not merely to satisfy the perceived needs of students and the labor markets on which they are dependent, but also to satisfy one's academic colleagues, who have also developed an acute (if sometimes misdirected) sense, of course value and program coherence.  My fear is that, as presently structured, "Elements of Law" is both too ambiguous to provide students with a sense of its place and value for their studies, and too marginal to suggest a valid reason for the use of precious faculty resources to service in a tightly structured first year curriculum.

So can one restructure an "Elements of Law" course from this ambiguous mess in a way that remains true to the general sentiment that brought it into existence (a focus on the meta-structures and frameworks of law systems), but that can be rigorously structured to provide value to students consistent with our obligation to train future lawyers operating at the highest levels of the profession (the relevance and quality issues)? That, in effect, has been the problem I posed for myself two years ago when I first was confronted with the task of adding content to the four lines of course description I set out above.  

I chose to approach the issue by structuring "Elements of Law" as a foundation course.  The notion was meant to be contextual--foundational in relation to the rest of the first year curriculum, connected to the learning outcomes of those courses but without duplicating those outcomes unnecessary. The first year courses serve  parallel purposes.  They provide a substantive foundation in classical American law, while also providing a first cut at teaching lawyer cultural skills.  Thus, for example, civil procedure teaches both the substantive rules of civil trial procedure and the skills necessary to read, interpret and apply regulations within a web of statutes and constitutional principle. Contracts teaches the substantive rules of economic transactions and the skills of common law reasoning (together with the code like structures of the U.C.C.); torts teaches both the substantive law of civil wrongs (and common law reasoning) and the policy contexts in which our society determines its choices for allocating risk and responsibility for actions that produce remediable harm.   Criminal law might be understood as teaching statutory application and construction skills. Property is quite useful for developing an understanding of the structures for managing the power to control and exploit things, principally real estate in the first year.  And so on.  What can an "Elements of Law " course add to these rich first year training offerings?  My sense is that if it is to serve any purpose at all, "Elements of Law" must be structured to provide a means of adding coherence to the first year curriculum and its multiple teaching objectives. That is, the course must serve to cobble the pedagogical objectives of the rest of the first year curriculum so that students will have a foundation for leveraging the learning of each of these first year courses well beyond the learning silos made necessary by the way in which we must structure learning. The course should make it possible for students to understand what holds U.S. law together, its meta-foundations, so that the insights of torts might be applied to property, the insights of analysis of civil procedure applied to  contract and the like.

The first year law student, then, might get more out of her substantive courses, if she acquires a knowledge of the institutional structures of the law systems of which each of these substantive courses form only a part, and the normative premises that guide the political choices that produce the structures and divisions law law and legitimate particular approaches to making, understanding and applying law. With this as a core premise of the course, it becomes easier to create a coherent structure for Elements of Law.  I start with the problem of law itself.  The first section unpacks the concept of law--common law, equity, statutes, regulation and law beyond law (social norms, and functional law.  Once the concept of law is understood, it becomes easier to place law within the institutional structures in which it is created, and applied--the state and its apparatus, the ordering of law in hierarchies of authority, the relationship between national and international law, and the constraining principle of rule of law.  These are basic concepts and relationships facility with which enriches the study of individual fields of law study.  Once general principles of institutional structures are understood, it is possible to contextualize these insights within the realities of the American Republic--the general government, the administrative branches, inferior political units, and the residuary role of the people as ultimate sovereigns.   From this general study, it is then possible to begin to focus more particularly on the interpretation and application of law, focusing on the role of the courts and their frameworks for statutory and constitutional interpretation.  Students who master these materials are more sophisticated consumers of law, may make better students of their first year courses, and better lawyers because from the first they begin to develop the means to overcome the siloing effect of legal education.  Students begin to develop those muscles within the "Elements of Law" course itself.  The last section of the materials is designed to provide an opportunity to apply the insights learned to a set of specific issues.  I have provided three alternatives.  One focuses on the governance of corporations.  Another focuses on strategic constitutional litigation, and the third considers the policy and political effects of statutory construction of socially controversial issues.

With the hope that the approach makes some positive contribution to its objectives, I present the extended discussion of the course  and the list of readings for this year.  Your analysis, thoughts, reactions ands suggestions would be deeply appreciated.  

__________

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 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 four (4) 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) Institutional architecture of law and governance: The Organization of the American Federal Union and the U.S. in a Global Context; and (4) An Introduction to Statutory and Constitutional Interpretation: The Role of the Courts. The last section of materials is meant to take this theoretical framework and apply it systematically to a substantive area of study at the core of a lawyer’s work. I have developed three alternatives: (1) the law of corporations in domestic and international law; (2) the constitution and racial discrimination; and (3) racial classifications and the policing of elections legitimacy through statutes. Together these law the conceptual framework within which all governance is undertaken within the United States domestically and in its international role. It also frames U.S. approaches to the governance issues attendant on globalization. These are organized from theory to application. The purpose is to guide the student from the premises that underlie her legal studies (and ultimately the framework of practice cultures) to the application of those premises in the ordinary course of a lawyer’s work. Students are rarely induced to consciously make these connections, or to understand how an ability to deploy these premises may substantially enrich the practice of the lawyers’ vocation.

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 Rule 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.

To that end, 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.” Under this view, law is the conscious product of the national will directed toward to the attainment of a particular behavior controlling objective. From that premise, it follows that 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).

Having considered the distinction between “law” systems and “government” institutions, the section turns toward issues of law system coherence. The object is to get the student 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. She will also consider how government, principally through its courts in the United States, then develops rules for dealing with conflicts of hierarchy among legal systems when more than one appear to apply to the resolution of a dispute. That discussion serves as the basis for considering 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 normative theories to support hierarchies are explored. Lastly, 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.

The last part of this section then seeks to put all the materials together around the notions, now increasingly important in framing discussion about the legitimacy of law and law systems—rule of law. The notions of rule of law as a set of process values (thin rule of law) and normative values (thick rule of law) are explored. A comparative approach suggests the malleability of the concept of rule of law but also its importance as a sign of law system legitimacy. The idea of due process and rule of law as a human right is also explored. The focus on rule of law in the United States will introduce students to due process as a constitutional and rule of law concept. Consideration of Hamdi v. Rumsfeld, 124 S Ct 2633 (2004) will serve to provide context to these notions.

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.

An Introduction to Statutory and Constitutional Interpretation: 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 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.

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?

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.

Application Option 1: Corporate Regulation in Domestic and International Law. This section applies the principles introduced in the preceding materials to a specific field of law—the regulations of business corporations. The law of corporations was chosen for several reasons. First, in the United States, corporate regulation is essentially a creature of statute in most states. Second, while there are substantial differences in the scope of statutory coverage—the Delaware Code is substantially more porous than that of states that have adopted variations of the Model Business Corporation Act—this field of law provides substantial opportunities to consider issues of both statutory interpretation and of the interlinked operation of statue, case law, and constitutional law. Third, the last twenty years has been the aggressive development of law and governance initiatives at the international level that may substantially affect the scope of corporate regulation within and between states. These center on corporate social responsibility standards and corporate obligations to respect human rights as a set of internationally crafted norms, and international law relating to corporate governance issues. Fourth, students are introduced to emerging polycentric governance models increasingly important within the operation of globalized operations, like those of transnational economic actors. Lawyers increasingly confront governance systems that, while not law in a formal sense, have the effect of law on clients and must be considered in advising clients. This requires learning to maneuver among different but applicable systems relevant to a client’s operations. Lastly, this section provides students with the opportunity to encounter a coherent system of law beyond the conventional offerings of the first year curriculum but which may produce insights useful in those courses.

This section starts with an introduction to the modern form of American corporate code—the Model Business Corporation Act. It suggests the premises and scope of codes in U.S. law. That leads to a consideration of the relationship between code and judicial decisions in corporate law. Two examples are highlighted: first the use of equity power to interpret corporate statutes within the public policy constraints discerned as underlying corporate codes; second, the limits of the use of the equity power where the code provisions might be used strategically to eliminate or constrain public policy. The next sections touch on the mechanics of corporate formation, corporate capitalization and the framework of authority for officers, directors and shareholders. Here students learn how to interpret and apply statutes within the overall policy of the code. The issue of fiduciary duty is then introduced as a means of showing students the role of courts as gap fillers and innovators in one of the core areas of corporate law. The complexity of that interaction is explored as well. Lastly, students will be introduced to the issue of corporate social responsibility. This provides an opportunity to consider the way in which national and international law overlap in corporate governance. It is also useful for showing students the way in which governance by contract has been developing and the uses of soft law in the international arena. Students will learn that law is no longer limited to the study of the cases, statutes and administrative regulations of a domestic legal order.

Application Option 2: An Introduction to Constitutional Interpretation. This section of materials considers theories of constitutional interpretation 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.

This section starts 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 Option 3: An Introduction to Statutory Interpretation From Race to Presidential Elections. This last section of materials considers issues of interpretation of statutes by courts. The substantive focus will be on two problems of interpretation. The first involves the interpretation of the definition of race. While the issue has its roots in efforts to deploy law to manage the rights deprivations schemes of slavery, it has modern application in a variety of statutes meant to protect against race based detrimental actions. The second considers the appropriate interpretation of the Florida elections statute at issue in Bush v. Gore and central to the settlement of the 2000 presidential election. 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.

Application Option 1:

(7) a working knowledge of the framework and structure of the Model Business Corporation Act

(8) An ability to apply the Model Business corporation Act to determine issues of incorporation, capitalization, and the role of directors, officers or shareholders.

(9) to have a basic knowledge of fiduciary duty

(10) to have substantial knowledge of corporate social responsibility in its traditional approach and a basic knowledge of the emerging global approaches to corporate social responsibility.

Application Option (2):

(11) 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.

(12) Working knowledge of issues of statutory interpretation in its legal, political, and methodological aspects.

Application (3):

(13) a basic knowledge of the issues and resolution of the statutory construction and application of race definitions.

(14) a basic knowledge of the legal and statutory construction issues, and their resolution touching on the 2000 U.S. presidential elections as litigated in Bush v. Gore.

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.

Detailed Syllabus

I. What is Law?
A. Introduction: The cast of characters, institutions and forms
--Justinian, Institutes (c. 570 A.D.) READ J.1.1-1.2
available http://amesfoundation.law.harvard.edu/digital/CJCiv/JInst.pdf

B. Law Articulated by Courts: The Common Law & Equity
--LAW: Arthur R. Hogue, Origins of the Common Law (Indianapolis, Liberty Fund 1986 (1966)); Chapter 1 (3-29) and Chapter 8 (185-190).
--EQUITY: Hon. Mr. Justice P.W. Young, “Equity,” The New South Wales Bar Association (August 2007). READ Pages 1-4; passim the rest optional.
Available http://www.nswbar.asn.au/docs/professional/prof_dev/BPC/course_files/Equity%20-%20Young%20J.pdf
--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
--Charles E. Clark, “The Union of Law and Equity,” 25 Columbia Law Review 1-10 (1925). Available http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4281&context=fss_papers
--P.S. Atiyah, “Common Law and Statute Law,” Modern Law Review 48(1): (1985). Available http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1985.tb00823.x/pdf.
--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.htm

Optional Text:
--John Henry Merrymen et al., The Civil Law Tradition: Europe, Latin America, and East Asia. Michie 1994. READ pp. 447-454; 476-485
--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.
-- 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

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, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations. Georgetown J. International Law, 39(4):591-653 (2008). Available http://ssrn.com/abstract=1112882,
--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.
-- 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.

II. Hierarchies of Law and Governance: Sources and Uses.
A. The State and its Apparatus.
—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)
--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.
--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 published version); Available http://www.backerinlaw.com/Site/wp-content/uploads/2013/02/Reifying-Law.pdf.

B. Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, other sources.
--hierarchy of law in the United States
--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). READ 1-22
-- 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 http://www.info.gov.za/documents/constitution/1996/index.htm.
--Indiana Code 1-1-2-1
--Hierarchy of Law in Georgia; available http://georgiainfo.galileo.usg.edu/pdf/hierarch.pdf
Background:
“About United States Code:
The U.S. Code (USC) is the codification by subject matter of the general and permanent laws of the United States. It is divided by broad subjects into 51 titles and published by the Office of the Law Revision Counsel of the U.S. House of Representatives. The U.S. Code was first published in 1926. The next main edition was published in 1934, and subsequent main editions have been published every six years since 1934. In between editions, annual cumulative supplements are published in order to present the most current information.
FDsys contains virtual main editions of the U.S. Code. The information contained in the U.S. Code on FDsys has been provided to GPO by the Office of the Law Revision Counsel of the U.S. House of Representatives. While every effort has been made to ensure that the U.S. Code database on FDsys is accurate, those using it for legal research should verify their results against the printed version of the U.S. Code available through the Government Printing Office.
Of the 51 titles, the following titles have been enacted into positive (statutory) law: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 41, 44, 46, 49, and 51. When a title of the Code is enacted into positive law, the text of the title becomes legal evidence of the law. Titles that have not been enacted into positive law are only prima facie evidence of the law. In that case, the Statutes at Large still govern.
The U.S. Code does not include regulations issued by executive branch agencies, decisions of the Federal courts, treaties, or laws enacted by State or local governments. Regulations issued by executive branch agencies are available in the Code of Federal Regulations. Proposed and recently adopted regulations may be found in the Federal Register.” (About the United States Code, Government Printing Office, http://www.gpo.gov/help/index.html#about_public_and_private_laws.htm.

C. Hierarchies of Law Within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order
--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.
--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

D. The Relationship of Law and the Government of the State: Role of Law/Rule of Law.
--Norhiro Urabe, “Rule of Law and Due Process: A Comparative View of the United States and Japan,” Law and Contemporary Problems 53(1):61-72 (1990). Available http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4023&context=lcp.
--United Nations Rule of Law, “What is the Rule of Law. Available http://www.unrol.org/article.aspx?article_id=3 .
-- David Clark, “The Many Meanings of the Rule of Law”.
--Hamdi v. Rumsfeld, 124 S Ct 2633 (2004) READ PARTS I, III. Available http://www.law.cornell.edu/supct/pdf/03-6696P.ZO.
Optional
--Mary Crock and Daniel Ghezlbash, “Due Process and Rule of Law as Human Rights: The High Court and the ‘Offshore’ Processing of Asylum Seekers,” available http://theredtelephone.files.wordpress.com/2011/03/due-process-and-rule-of-law-as-a-human-right.pdf. READ 1-6


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
--U.S. Constitution, Arts. I-III. Available http://www.archives.gov/exhibits/charters/constitution_transcript.html
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).
--Whitman v. American Trucking Association, 531 U.S. 457 (2001). Available http://supreme.justia.com/cases/federal/us/531/457/case.html READ 462- 476.
--Peter Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum.L.Rev. 573 (1984). READ INTRO & PART I (Pages 1-12 of the WESTLAW VERSION).

C. The States and the People; Popular referendums:
--Romer v. Evans, 517 U.S. 620 (1996) (equal protection limitations).
--City of East Lake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976) (due process limitations)
--K.K. DuVivier, Out of the Bottle: The Genie of Direct Democracy, 70 Alb. L. Rev. 1045 (2007).
OPTIONAL
--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.


IV. 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 http://web.mac.com/lcb911/iWeb/Larry%20Cata%20Backer/My%20Published%20Work_files/20BCThirdWorldLJ291%282000%29Chroniclers.pdf.
--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. 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 PARTS II & III)
--Yule Kim, “Statutory Interpretation; General Principles and Recent Trends,” Congressional Research Service Report for Congress Order Coder 97-589 (Aug. 31, 2008). Available http://www.fas.org/sgp/crs/misc/97-589.pdf
1. Theory and statutory interpretation
Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation,” Minnesota Law Review 77:241-267 (1992). Available http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2855&context=facpubs&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar_url%3Fhl%3Den%26q%3Dhttp%3A%2F%2Fscholarship.law.berkeley.edu%2Fcgi%2Fviewcontent.cgi%253Farticle%253D2855%2526context%253Dfacpubs%26sa%3DX%26scisig%3DAAGBfm39SEdJTC3FuKV2YEi1BTIHmSGZpw%26oi%3Dscholarr#search=%22http%3A%2F%2Fscholarship.law.berkeley.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D2855%26context%3Dfacpubs%22
2. The Role of Text and Precedent
--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
--Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992).

D. 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).

E. Constitutional Interpretation; A Special Case?
Readings: The section applies the statutory interpretation materials already covered 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 textualism
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 dissent)

2. Originalist Theories: Original Understanding
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 Theories
b. 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).

APPLICATION: I will choose one of these three alternatives as the last part of the class materials.


V. Application: The Law of Corporations in Domestic and International Law

This section applies the principles introduced in the preceding materials to a specific field of law—the regulations of business corporations. The law of corporations was chosen for several reasons. First, in the United States, corporate regulation is essentially a creature of statute in most states. Second, while there are substantial differences in the scope of statutory coverage—the Delaware Code is substantially more porous than that of states that have adopted variations of the Model Business Corporation Act—this field of law provides substantial opportunities to consider issues of both statutory interpretation and of the interlinked operation of statue, case law, and constitutional law. Third, the last twenty years has been the aggressive development of law and governance initiatives at the international level that may substantially affect the scope of corporate regulation within and between states. These center on corporate social responsibility standards and corporate obligations to respect human rights as a set of internationally crafted norms, and international law relating to corporate governance issues. Fourth, students are introduced to emerging polycentric governance models increasingly important within the operation of globalized operations, like those of transnational economic actors. Lawyers increasingly confront governance systems that, while not law in a formal sense, have the effect of law on clients and must be considered in advising clients. This requires learning to maneuver among different but applicable systems relevant to a client’s operations. Lastly, this section provides students with the opportunity to encounter a coherent system of law beyond the conventional offerings of the first year curriculum but which may produce insights useful in those courses.

A. Reading Codes: An Introduction to the Model Business Corporations Act
--Model Business Corporations Act available http://users.wfu.edu/palmitar/ICBCorporations-Companion/Conexus/ModelBusinessCorporationAct.pdf
--John F. Olson and Aaron K. Briggs, “The Model Business Corporation Act and Corporate Governance: An Enabling Statute Moves Toward Normative Standards,” Law and Contemporary Problems 74:31-43 (2011). Available http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1607&context=lcp

B. The Nexus of Statute and Common Law
1. Equitable limits on corporate action
--Schnell v. Chris Craft Industries, 285 A.2d 437 (Del Sup. 1971); facts reported below at 285 A.2d 430.
2. Rule of Independent Legal Significance
--Hariton v. Arco Electronics, 182 A.2d 22 (Del.Ch. 1962) aff’d 188 A.2d 123 (Del. 1963).


C. Forming the Corporation: interpretive issues
Problem 1: Alpha, Beta and Theta have decided to form a corporation. They want you to handle the incorporation process. Theta has no interest in running he day to day affairs of the enterprise but he wants a say in major decisions. Alpha and Beta want to run the company .
--MBCA §§2.01-2.07; 4.01-4.03
Problem 2Assume that you have prepared the relevant corporate documents and reviewed them with Alpha and Beta. They are in proper order. You give them to Alpha to file on Friday morning. Alpha forgets to file the documents. On the same day Alpha and Beta enter into a lease for office space that they sign in the name of the “corporation.” That same day there is a fire in the office and a member of the cleaning staff was injured trying to put it out. Assume the “corporation” is unable to make lease payments or pay for the injuries. Can Alpha, Beta or Theta be held personally liable.
--MBCA 2.04 and Official Commentary

D. Capitalizing the Corporation
Problem: Alpha, Beta and Theta have agreed to invest the following amounts in their newly formed corporation—Acme, Inc.: Alpha $200,000; Beta $200,000 and Theta $200,000. Theta has also agreed to invest an additional $400,000 in the business. Alpha and Beta want to run the corporation. They will each serve as officers for which they will receive a salary and they are willing to have a residual right to receive any income generated by the corporation and to recover the capital they are committing as long as they have control. Theta doesn’t want to be involved in the day-to-day operations of the company but wants an equal say about the management of the enterprise. He also wants a steady return on his investment of no less than $40,000 a year for his additional investment in Acme. What are the interests of each of the parties with regard to participating in the management of Acme, receiving current income and recovering their capital? Would it be better to Theta to receive preferred stock or debt in exchange for the $400,000 additional investment in Acme?
--MBCA §§ 6.01 - 6.28
--Equity-Linked Investors, L.P. v. Adams, 705 A.2d 1040 (Del. Ch. 1997).

E. Corporate Actors: Officers; Directors and Shareholders
1. Officers
--MBCA §§ 8.40 – 8.44
2. Directors
-- MBCA §§ 8.01 – 8.25
3. Shareholders
-- MBCA §§ 7.01 – 7.29


F. Fiduciary Duty, at the crossroads of Statute and Common Law
--MBCA §§ 2.02(b)(4); 8.30 – 8.33
--Bayer v. Beran, 49 N.Y.S.2d 2 (Sup.Ct. 1944)
--Stone v. Ritter, 911 A.2d 362 (Del. 2006)

G. The Social Responsibility of Corporations: The Traditional Approach
--Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law, 37 Columbia Human Rights Law Review 287-389 (2006). Available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=695641
--Dodge v. Ford Motor Co., 204 Mich. 459, 170 N.W. 668 (1919).
--Theodora Holding Corp. v. Henderson, 257 A.2d 398 (Del. Ch. 1969).
--Kahn v. Sullivan, 594 A.2d 48 (Del. 1991).
--MBCA § 3.02

H. The Social Responsibility of Corporations: Emerging Global Approaches
1. Corporate Regulation
-- Backer, Larry Catá, Multinational Corporations as Objects and Sources of Transnational Regulation. ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008. Available at SSRN: http://ssrn.com/abstract=1092167.
2. International Standards
-- United Nations Guiding Principles on Business and Human Rights (2011) available http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf
-- Backer, Larry Catá, “Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations,” Melbourne Journal of International Law, 10(1):258-307 (2009), Available at SSRN: http://ssrn.com/abstract=1427883


OR


VI. Application: The U.S. Constitution and Race Discriminartion.

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. 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)

B. 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)

C. 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.

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, 418 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)


OR


VI. Application: Racial Classifications and the Policing of Elections Legitimacy through Statutes.
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.
-- 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).

A. What is race?
1. Applying statutes defining race to restrict marriage rights.
--State v. Treadaway, 126 La. 3000, 52 So. 500 (1910).
--William Q. Lowe, Comment: “Understanding Race: The Evolution of the Meaning of Race in American Law and the Impact of DNBA Technology on its Meaning in the Future”, Albany Law Review 72:1113-1143 (2009). READ PARTS I-III
2. Race and EEOC litigation
--Ali v. National Bank of Pakistan, 508 F. Supp. 611, 25 Empl. Prac. Dec. (CCH) ¶31640 (S.D. N.Y. 1981).


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.