(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 offers initial thoughts about the materials and links to its contents.
Table of Contents With Links:
Chapter 1 (The Context and Roadmap for Study)
Chapter 2 (Law and Justice: The cast of characters, institutions and Forms)
Chapter 3 (Law Articulated by the Courts--Common Law)
Chapter 4 (Law Articulated by the Courts--Equity)
Chapter 5 (Law Articulated by Legislatures: Statutory Law)
__________
Preface
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 was meant to orient students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. The course description described as an objective to cover topics across many substantive areas of law, and to address legal methodology as it arises in the legal profession. [1]One of my great frustrations in developing this course has been what I consider to 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.I taught the course for the first time in the Fall 2010 term. These efforts are in line with those of many other American law schools that seek some sort of bridge course between the undergraduate studies of most of its students and the peculiar norm-world of law. In many places, these sorts of efforts focus on the lawyer's craft, offering courses in statutory interpretation, legal methods, legislation, legislation, or the like. In other places the focus is more theoretical, focusing on theories of law, justice or jurisprudence.Few of these efforts, however, seek to integrate the elements of jurisprudence and interpretation within the larger context of humanities studies. Law's strong connection to sociology, political science, international relations, philosophy, rhetoric, and logic, for example, are difficult to ignore. To segregate Law, and the law student, from the richness of humanities, ill-prepares the law student to serve his clients and society. Thus, without establishing the connection between the humanities and the more pragmatically oriented "craft" aspects of the first year curriculum, students will be unable to understand the that law and the lawyer's role in society is embedded. The lawyer does not sit apart from the society she serves; neither should she be educated as if this were the case.Establishing these connections is critical for the first year law student. In shaping this course, then, I wanted to blend an admittedly necessary focus on the lawyer's craft and the "language" of the law with a strong humanities focus. That focus will help the law student grasp the connection between law and world in which the lawyer practices and in which law makes itself felt. The heart of this approach centers on an integrated analysis of a case study--the movement from the legal protection of segregated education to the constitutionalization of racial integration in education. This requires the students to work through law in its sociological, political, philosophical, jurisprudential, cultural and other elements, all of which were critical components in the movement from segregation to desegregation in public education. Law--as constitution, statute, and cases--is woven into the larger historical, sociological, and political context. At the same time, the role of philosophy, political theory, rhetoric and discursive tropes are examined both for their contribution to the development of "law" and to their instrumental role in that progress. To that end I produced an initial syllabus.[2]I taught it again in 2011. It should come as no surprise that the reception of the course by students was mixed. For students looking to be trained in a craft, and expecting nothing more than the mechanics courses they believe will produce the required training to get them to the first job, the course was a bit of a shock. But interestingly, there were a number of students who took to the course. Some were interested immediately. Most were drawn into the materials only after several weeks when (as one student told me after the course) they figured out how the class was different and how it fit in with the rest of their curriculum. Several indicated that the course would have been completely incomprehensible without the guidance of the narrative description of the course provided in the syllabus. They expressed the wish that the description be expanded. because there is little outside the course to draw on, a detailed conceptual framework and analysis of structure is essential for the course to make sense. Equally useful was the list of class objectives. However, it is noteworthy that even with these aids, there were several students who complained that there was not enough in the materials to make the structure of the course easily accessible. This, in part, might reflect the common culture of law school course pedagogy, in which the utility of a course directed in the short term to the bar and in the middle term to the first job, is an important way that students weigh the value of a course (and therefore the amount of time that ought to be devoted to its mastery).Overall, I found that students first approached the class with a bit of trepidation. The class was so different. The exercise of mastering doctrine, interpretation and then understanding it in its social context proved difficult at first. Many began to appreciate the power of understanding the “why” of a class beyond the usual and narrow doctrinal approaches. More importantly, they began to understand law instrumentally—not from the position of passive recipients of law but as potentially active agents of the development of law. Most students, to the extent they got this far, began to realize this only after the class was over, especially when they took their second semester course. That was the most gratifying part of teaching the course--that students found it easier to approach their more traditional classes, and some felt freer to explore the issues raised in those classes in more sophisticated ways.I also found that parts of the course could have been refined. In particular, the first part of the course needed some tightening up. In particular, I thought that the distinctions between civil law and common law origins and sensibilities needed to be drawn out more carefully. The connection between these forms of law structuring, and the social, political, economic and cultural contexts of law and state organization was needed to be made more explicit. I also found it useful to make more explicit the consideration of the relationship between law, the state and its government. For law students in the United States, that connection provides a foundation for considering the most important relationship--between law, the courts, and the legislature.I taught the course for a third time in 2013. The reaction was stronger this time and much more divided. The prospects for the legal job market had changed, tuition had gone up and students were looking for substantial value added for their time in class. That value added was relatively easy to convey in the traditional courses long taught in the first year curriculum. But I found I had to sell a “concept” and “methodology” course much harder, and students, polite as ever, were substantially more skeptical of the value added for a course ion “elements” of law. It was clear that relevance did not come naturally to students, increasingly pressed for time, and much more focused on payout. Foundations, theory, structural and framework constraints, and legal culture, all critical to an understanding of law, and essential to the development of a sophisticated lawyer, have become increasingly remote. So I began to think about how to connect theory to the everyday activities of lawyers. And that thinking ultimately led to the production of these materials.I still believe in the utility of a course that seeks to integrate the elements of jurisprudence and interpretation within the larger context of humanities studies. Law's strong connection to sociology, political science, international relations, philosophy, rhetoric, and logic, for example, are difficult to ignore. To segregate law, and the law student, from the richness of humanities, ill-prepares the law student to serve his clients and society. Thus, without establishing the connection between the humanities and the more pragmatically oriented "craft" aspects of the first year curriculum, students will be unable to understand the that law and the lawyer's role in society is embedded. The lawyer does not sit apart from the society she serves; neither should she be educated as if this were the case.There was a side benefit as well. By focusing the bulk of the class on the case study of the 14th Amendment and the movement from segregation to desegregation of education in the last chapters of the materials, I was able to move race to the center of discussion about a foundational element of U.S. constitutional law that has had tremendous effect beyond the usual horizons of the law student’s horizons. This was particularly useful as a way to get students who usually avoid such discussion to engage with these issues in ways that helped them see the connection between the jurisprudence, sociology, politics, philosophy and (pseudo) science of race and the structures and discourse of law. This for me was the most rewarding aspects of the class.But the materials are not meant to be limited to the entering law student. Much of what gives cohesion to law and legal systems, are its cultural, political, and policy roots. These roots are as much the object of study of the social scientist as it is of the lawyer. While the lawyer seeks to focus on the technical application of these systemic insights into operational language, patterns of behaviors, discursive tropes and institutional constraints, the social scientist is also interested in the baseline premises themselves, and their effect on the organization, development and functioning of the legal system as system. The comparativisit and the internationalist are further interested in the operation of a legal system within the context of the community of states and within international legal, economic, and political networks. I find, especially, that the graduate students in the Penn State School of International Affairs also found these materials interesting and quite useful for their own studies of politics and policies. And, indeed, the study of the legal structures of states, and the development of governance frameworks beyond states and among global civil society actors, is essential to the training of students of international affairs and public policy, even if they do not seek a law degree.There was an additional side benefit from freeing the materials form a narrow technical and professional training orientation, to one that also made the materials accessible to students in the social sciences. By opening the course to non law students, the course provided a rigorous introduction to the language and substance of law that in many cases was sufficient to permit non law students to enroll in certain upper lever law courses. Though they did not have the benefit of the mandatory substantive courses of the first year, they acquire enough of the vocabulary and sense of the structure of law and its practice, that working through very specific substantive areas in fields of interest (for example, international trade, international law, intellectual property, environmental law and the like) becomes possible.My goal, then, is to make better sense of the course for law and policy 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. It also reflects the way in which the need to teach the fundamentals of American legal theory and law has become an important elements of related studies in international affairs and for comparative law and policy specialists in other countries. Though the course is taught as a semester, it can also be taught in shorter format. It is with the hope that the approach makes some positive contribution to its objectives, that I present these materials for your consideration and use. Your analysis, thoughts, reactions and suggestions would be deeply appreciated as the project evolves.This book would not have been possible without the contribution of many people over a long period of time. My thanks to my students in the Elements of Law classes in 2010, 2011, and 2013, who served a cheerful guinea pigs as I experimented with materials and approaches. More specifically, I would like to thank my administrative assistant, Maggie White; this book would not have emerged from its cocoon without her very considerable efforts. Great thanks as well to my research assistant Damian Fiala (Penn State Law expected 2017), who rather than fleeing from the materials after he had mastered them in class, returned to help develop them further. Finally I thank my editors at Carolina Academic Press, whose support and patience has made this volume possible.
[1] Penn State Law, Course Descriptions. Available http://law.psu.edu/academics/jd/course_descriptions.
[2] Available at Larry Catá Backer, Developing a New Course--"Elements of Law"Law at the End of the Day, August 16, 2010.
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