(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.
This post includes a draft of Chapter 1.
Introduction
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 http://www.oecdobserver.org/news/fullstory.php/aid/4366/Corporate_leaders:_Your_supply_chain_is_your_responsibility.html.
[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, http://www.scvisions.com) (Updated
August 2013). Available http://cscmp.org/sites/default/files/user_uploads/resources/downloads/glossary-2013.pdf. 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 http://www.oecd.org/daf/inv/mne/48004323.pdf.
[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).
No comments:
Post a Comment