Sunday, August 17, 2014

Chapter 1 (The Context and Roadmap for Study): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development  of a new course I have been developing for our first year law school students, "Elements of Law."  The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions.  I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study. 
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world.  That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor.  The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.
This post produces some of the materials I will be presenting to the class.  I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 1.


Chapter 1

The Context and Roadmap for Study

I. Context

            Much like most beginnings, the initial classes of a course introducing the law and legal system of the United States is meant to provide an overview of the course, specific course objectives and frame the context of the discussion that will carry the class through to its end. You are encouraged to read the “Preface” which provides the student with some context. That is done because, as an unconventional course, law students will likely have difficulty figuring out where this course “fits” into what they think is a proper first year law education. Students of the social sciences and international affairs may have a similar difficulty, situating the materials within their vision of a coherent course of study leading them to some pedagogically plausible objective.  My hope is to convince you that this course is both relevant and useful.

            This “Introduction to the Law and Legal Systems of the United States” course is meant to provide a general foundation for your law studies and graduate studies that touch on a critically important and influential law and legal system.  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.”  The materials focus is on U.S. law as system, and through a study of that system, of the context within which national law systems intersect with international law and social norms.  To that end, the student would be exposed to the an understanding of the way "law" is created in the U.S. (common law, statute, administrative regulation), the relationship of these forms of law and the state (constitutional law, hierarchies of law, relationship between domestic and international legal regimes, etc.), an introduction to the ways in which law is interpreted (the role of courts, judicial interpretation of cases and statutes), and an introduction to the context in which law plays a role in policy and international affairs, by placing the US system within the world of comparative law and respective legal families, (this might as well help both the foreign and the US participants orientate themselves a bit better to the connection between law and policy). Short problems and examples would be drawn from the basic first year law curriculum (ie modern common law reasoning through tort or contract, modern statutory law through criminal statutes, administrative law through civil procedure or basic admin law, and domestic "soft law" such as NYSE listing rules and the methodologies for ranking US law schools). The last third of the materials provide an “application focus” from the core substantive legal concepts.

            The materials that follow thus orient students in the approach to a set of core  questions central to law and the legal system of the United States: “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?” 

            It might be useful, as we try to orient ourselves to the materials in this book, to consider a problem that is meant to draw out its themes:


Problem: Apparel Mart[1]

Apparel Mart is a corporation incorporated under the laws of the state of Delaware.  It is publicly owned and its shares are traded on the New York Stock Exchange, with whose Exchange listing rules Apparel Mart must comply. Its principal offices are located in Philadelphia Pennsylvania. Apparel Mart operates about 1,000 retail stores selling children’s clothing under its own “Wow!” brand. Apparel Mart used to directly manufacture the clothing it sold, but over the last several years, it has outsourced this task.  To that end it has entered into contracts for the manufacture of clothing items with a number of corporations, most of which are located in Bangladesh.  Apparel Mart owns no shares in any of these corporations.  All of these manufacturing corporations form part of Apparel Mart’s “supply chain.”[2] However, as a matter of law in the United States and Bangladesh, Apparel Mart and the Bangladeshi companies are each viewed as separate legel entities, each wholly responsible for its own activities.  but they are not, as a legal matter,

As part of its relationship with these manufacturers, Apparel Mart has developed a “Supplier Code of Conduct” which has been incorporated into its contracts with the manufacturers.  Under the terms of these Supplier Code of Conduct, Manufacturers agree to a number of terms that affect the way they operate their businesses—including terms with respect to compliance with local law, labor conditions, worker safety and plant facilities, environmental sustainability, transparency, anti-corruption and community relations. While many of these provisions are consistent with the laws of Bangladesh, several key provisions are drawn from either the law of the United States or norms included in a number of international treaties (only some of which have been ratified or incorporated into the laws of either the United and or Bangladesh). Apparel Mart also has the power to withhold payments for goods received in the event it determines that any manufacturer has breached the Supplier Code of Conduct, and ultimately to terminate the agreement for such breaches. In addition, the Supplier Code of Conduct empowers Apparel Mart to train manufacturer supervisors, to inspect the plants operated by manufacturers for the production of Apparel Mart goods.

Apparel Mart has devoted much time and effort to its corporate social responsibility campaigns, which management believes is important for sales among Apparel Mart’s target demographic. To ensure the effectiveness of this campaign, Apparel Mart has tried to conform its Supplier Code to the provisions of the Guidelines for Multinational Enterprises, a set of principles developed by the Organization for Economic Cooperation and Development, of which the United States is a member. Formally, the Guidelines for Multinational Enterprises are recommendations addressed by governments to multinational enterprises, they are not binding on states (or enterprises like Apparel Mart).  They might, though serve as a basis for the formulation of public policy and national legislation by the OECD member states.  States are required to institute “National Contact Points”, officials specifically charged with promoting the OECD Guidelines and empowered to hear complaints for their violation. Chapter IV of the Guidelines for Multinational Enterprises specifies the human rights obligations of multinational enterprises, including the obligation to “Seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship, even if they do not contribute to those impacts.”[3] Apparel Mart is proud that it has been ranked 11 in the CSR Global Rankings produced by the prestigious NGO—CSR Rankings.

One of the manufacturers working under this Supplier Code, Shirt Corp., a corporation incorporated under the laws of Bangladesh, operated a factory in Dacca.  Actually, Shirt Corp. rents space in a large industrial park where it has established its facilities. The building has never been inspected for compliance with local fire and safety laws, and there have been complaints that Shirt Corp. has tried to put many more sewing machines in the facility that is safe.  Shirt Corp has rejected these complaints and the building has never been cited by authorities.  While there have been labor protests, Shirt Corp has assured Apparel Mart, during the course of two inspections over the prior 12 months that these were local and personal in nature.  Apparel Mart has put Shirt Corp on notice of possible violation of the supplier Code of Conduct and scheduled a full inspection for later in the year.  This was reported to Apparel Inc.’s shareholders and noticed on Apparel Mart’s CSR website.

Unfortunately one week before the inspection, a fire broke out in the industrial park where Shirt Corp. operated.  The consequences were tragic.  A large number of people were trapped in the building, including the employees of Shirt Corp. and there were many casualties.  Officials determined that the fire was caused by overtaxing the electrical system, and that this resulted from operating far too many machines than the building’s electrical system could tolerate.  Because the building held too many machines and workers, many people were injured because they could not get to exits, some of which were blocked.  There is a dispute, however,  about which of the manufacturers occupying the building, including Shirt Corp. was responsible for the start of the electrical fire.

As a result of these tragic events, a Shirt Corp employee group have filed a lawsuit seeking damages against Shirt Corp and Apparel Mart, in Bangladesh.  Another lawsuit has been file din the federal court for the Eastern district of Pennsylvania. Each alleges negligence on the part of Shirt Corp and Apparel Mart.  The employee group has also filed a complaint with the New York Stock Exchange alleging that Apparel Mart has failed to comply with its listing agreement because it did not appropriately disclose the dangers of the Bangladeshi facilities from which it purchased its apparel. Lastly, the employee Group has filed a complaint with the U.S. National Contact Point alleging a violation of the Guidelines for Multinational Enterprises, seeking an admission of wrongdoing and remedial efforts to ensure that Shirt Corp operate safer facilities. 

Apparel Mart has sent written notice to Shirt Corp terminating its contract and filed an action for declaratory relief in the state courts of Pennsylvania seeking a declaration that Apparel Mart is not liable for any damages resulting from the fire.  It has also, along with other clothing retailers in the United States and Europe entered into an “Accord” which is described as an independent agreement designed to make all garment factories in Bangladesh safer workplaces.[4] The Accord is said to be legally binding on each of the signatories, but does not appear to provide a right of action for violation of the Accord by anyone other than the signatories.  Nonetheless CSR Rankings has notified Apparel Mart that its ranking has been frozen subject to investigation, because Apparel Mart may no longer meet the rankings criteria.  A negative action will likely affect Apparel Mart’s sales and perhaps its share price.

Lastly, the government of Bangladesh has instituted a criminal investigation of the fire and has notified Shirt Corp and Apparel Mart that they are subjects of that investigation.  The government of the United States has also opened an investigation into the relationship between Apparel Mart and Shirt Corp, and a congressional committee has started hearing on the adoption of a new law imposing criminal liability in such cases.

Question: Describe all of the issues that Apparel Mart now faces.  Of these consider (1) which are legal issues that are suggested by these facts, (2) which are non-legal issues that may require the attention of Apparel Mart’s lawyers, and (3) before which tribunals, if any, will these issues be resolved.

            The “Apparel Mart” problem highlights both the complexities of issues facing U.S. lawyers today and the difficulties of distinguishing between “legal” questions, traditionally at the core of a lawyer’s job, and questions of business and politics s that were best left to “clients”. More interesting still, the old traditional simple relationships between law, lawyer, judge, and legislature has morphed into a more dynamic set of relationships with entities and individuals with governance authority that may affect a business and for which a lawyer’s expertise may be necessary. Lastly, the character of law in the United States, a conservative and traditional jurisdiction, has evolved as well. No longer simply compelling rules made by or through a legislative body or a court (statutes, regulations or judicial decisions), law has now also embraced other forms of governance and governance that has the effect of law may now be produced by non state actors. 

            For the lawyer, it suggests that the simple self-enclosed world of law and of legal practice has fractured and been reshaped by the realities of globalized trade and commerce. That reshaping has not only expanded the horizons of a traditional legal practice, but jas also substantially challenged the old and increasingly narrow understanding of law as a command produced at the end of a judicial proceeding or as a product of governmental enactment.  International organizations, of which states are members, now produce governance instruments with no legal effect but with substantial functional force.  Rating agencies now produce rules that may also have real consequences for business operation.  Both formal law and other governance instruments may have set up remedial measures and may require advocacy and practices for resolution that mimic the traditional roles of lawyers. The way in which lawyers must learn to read statutes, judicial opinions, contract provisions and other governance instruments may require distinct perspectives.  The appropriate means of seeking remedies may now provide multiple venues and may require strategic thinking that is quite distinct from the traditional approach of finding the appropriate court willing to hear claims based on applicable law produced by or through states.  However, the practice of law is now substantially altered.  The lawyer’s toolkit must also change to meet the requirements of the times.  The implications for policy and for situating centers of governance have become more complex.  And the emerging structures of multiple governance systems, autonomous of each other, affecting the same transaction simultaneously, has added layers of complexity that changes the character of legal practice.

II.  Roadmap.

            As this century moves farther from the last, the of boundaries and premises that held the legal structures of a state together coherently, its domestic legal order, has increasingly become more permeable, fractured, porous and polycentric.[5]   These materials are designed to introduce the student to the emerging systems that together constitute the system of law and governance in the United States.  It is meant to provide the student with a big picture overview of the domestic legal order of the United States.  More specifically, it is intended to introduce students to the culture, methods and approaches of lawyers in interacting with issues of law and governance—to understand the language of lawyers, and judges—and the premises that define their approach to law, its possibilities and constraints. The student, then, will be helped to see how an individual can “think like a lawyer”, and what that means in the specific contexts of governance in the United States.

            The materials you will be asked to master in “Introduction to the Law and Legal Systems of the United States” 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.  By substance, we will mean its substantive elements and its procedural mechanics. By form, we will mean the institutions through which law can be authoritatively made. 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. It also suggests what sorts of commands that can compel obedience and the institutions that can serve as the compelling force. 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.

            It follows, then, that the question “what is law?” is to some extent intimately connected with the question “where was law made?” to understand law, then, one has to understand the institutional context in which it is produced, and the extent to which particular institutions have been accorded power to “make” or “pronounce” law.  That investigation is also far more complex in the United States than a look at the organization of its government might suggest. 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 and the institutions that produces each.  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.  Lastly, the section introduces remedies—the consequences of the operation of the law against individuals and sometimes the state.

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. 

Institutional Architecture of Law and Governance: The United States and Lawmaking 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 the United States 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. 

            By the 21st century, though, the traditional division of the American federal government no longer accurately described the functional operation of the general government. To get a clearer picture, it is necessary to examine the role of the administrative architecture of U.S. government.  That requires an introduction to the non-delegation doctrine, the bundle of premises through which the three branch formal organization of the General Government can accommodate, at least functionally, an additional branch, and to manage that relationship without breaching the formal constraints of federal constitutional organization.

            We then briefly consider subsidiary units of government in the United States and its relationship to federal power. First we consider the relationship between the federal and state governments.  This relationship is drawn through the principles of “federalism”.  Those principles, themselves, suggest the elasticity of American law. Second, we consider the residuary power of the people.  The object of study is the extent of the power of popular referenda to “make” law in states and within the federal system.

            Lastly we consider the place of the U.S. government within the community of nations.  We will introduce this area of study not through the usual avenue—the principles of international law—but rather will consider this relationship from out of the sovereign capacity of the United States itself.  To that end the student will be introduced to the nexus of U.S. and international law from the U.S.’s perspective.  The Restatement of the Foreign Relations Law of the United States will serve as our guide.

The Role of the Courts: Juridical Review, Interpretive Techniques, and Legitimacy. With this section the student arrives at the heart of the course materials. The preceding materials have suggested the central role of the judiciary within the U.S. legal and governmental system.  If that is the case, then an understanding of the way in which judges approach their tasks, and the institutional boundaries of that task, are critical elements of the study of the U.S. legal and political system.  On an operational level, and for most students of law in the United States, the study of the practices and approaches of judges is important for another reason. 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.  It also suggests the extent of the uniqueness of the premises that mark the boundaries of judicial power and their role in government and with law. 

            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.

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. 


Overall Objectives of the Materials.  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) in its legal and policy contexts;

(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 and its legal and policy implications; 

(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; and

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

III.  Additional Readings

[1] This problem is loosely based on the tragedy of the Rana Plaza fire, which on April 24, 2013, killed over 1,100 people inside a commercial building and garment Factory in Dhaka, Bangladesh. Roel Nieuwenkamp, Chair, OECD Working Party on Responsible Business Conduct, described one consequence in the aftermath of the tragedy in “Corporate leaders: Your supply chain is your responsibility,” OECD Observer No. 299 (Q2 2014).  Available
[2] The Council of Supply Chain Management Professionals has drawn attention to some useful definitions.  Supply Chain Management Terms and Glossary (Definitions compiled by Kate Vitasek,   (Updated August 2013).  Available Supply Chain management is defined as: "Supply Chain Management encompasses the planning and management of all activities involved in sourcing and procurement, conversion, and all logistics management activities. Importantly, it also includes coordination and collaboration with channel partners, which can be suppliers, intermediaries, third-party service providers, and customers. In essence, supply chain management integrates supply and demand management within and across companies.”  Id., 187.  A supply chain is defined as “1) starting with unprocessed raw materials and ending with the final customer using the finished goods, the supply chain links many companies together. 2) the material and informational interchanges in the logistical process stretching from acquisition of raw materials to delivery of finished products to the end user. All vendors, service providers and customers are links in the supply chain.”.  Id., 186.
[3] OECD Guidelines for Multinational Enterprises (2011), Chp. IV.3.  Available
[4] A real life example of such an accord may be accessed here:
[5] I discuss this in more detail in Larry Catá Backer, The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity, 17(2) Tilburg Law Review 177-199 (2012).

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