Monday, February 06, 2017

Chapter 1 (Chapter Summaries) Roadmap for the Study of the Ideology and Systems of U.S. Law: "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

All contents posted on line may be accessed here:

Summary book organization and Chapter 1 Summary follows.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.

Chapter 1
Roadmap for the Study of the Ideology and Systems of U.S. Law 
A. Introduction

B. Apparel Mart and the Problem of Law
--Problem 1: Apparel Mart
--Notes and Questions
C. Roadmap to the Study of the Study of Law and Legal Structures
--1. What is Law?
--2. Sources of Law, Hierarchies of Law and the Rule of Law
--3. Institutional Architecture of Law and Governance: The United States and Lawmaking in a Global Context
--4. The Role of the Courts: Juridical Review, Interpretive Techniques, and Legitimacy
D. Overall Objectives of the Materials

E. Learning Objectives

F. Further Reading

A. Introduction

Much like most beginnings, the initial classes of a course introducing the law and legal system of the United States provides an overview of the course and specific course objectives. The object is to take the opportunity of an initial meeting to frame the context of the discussion that will carry the class through to its end. To that end, and for context, the student is encouraged to start the journey through these materials by reading the preface. That context is important for an unconventional course like this one, for which there is little “history.” This exercise may help make it easier for the law student to figure out where this course “fits” into their educational program. 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. The hope is to provide a framework for judging the use and relevance of the materials that follow.

Beyond the Preface, this chapter introduces and sets the stage for a study of the “Introduction to the Law and Legal Systems of the United States.” It provides a general foundation for law and graduate studies that touch on a critically important and influential law and legal system. It is also meant to provide the student with an introduction to the basic issues of this field of study and the basic approaches to attaining a successful understanding of its nature. Related to the introduction of basic issues is the effort 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 material’s 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 will be exposed to an understanding of the way “law” is created in the U.S. (common law, statute, administrative regulation); the relationship between 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 U.S. system within the world of comparative law and respective legal families (This might also help both foreign and U.S. participants orientate themselves a bit better to the connection between law and policy). Short problems and examples will be drawn from basic first-year law curriculum (e.g., 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 New York Stock Exchange listing rules and the methodologies for ranking U.S. law schools). The last chapters of the materials provide an “application focus” from the core substantive legal concepts.

This chapter, then, orients 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 lawyers reason?”; “What are the appropriate sources for information, reasoning, and the rules lawyers are meant to consider and apply?”; “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?”; and “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?”

The initial chapter problem, "Apparel Mart and the Problem of Law" is meant to introduce the student to these themes through a scenario that provides a glimpse at the basic organizing building blocks of law and of legal systems in a world in which multiple versions of these exist and bump up against each other. These organizing building blocks include law, the state and its government, the community of states, and non-state sources of regulation. It then puts each of these elements into action to help the student start to be able to visualize the separable components that comprise law and the administrative systems within which it is made, administered, interpreted, and applied. The roadmap for study and a brief discussion of pedagogy follows.

The chapter also introduces the student to the overall learning objectives of the materials: 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, equity, statutory or positive law, social norms, and emerging forms of governance, the sources of each, and the political theories underlying each;

(2) The distinction between law and the state and basic theories of customary law, natural law, democratic constitutionalism and other forms of legal autonomy;
(3) Basic sources of law (constitutions, statutes, treaties, etc.), hierarchies of law (the relationship between constitutions, statutes, case law, treaties, etc.), and the role of law (as a function of state action or as an autonomous set of norms);

(4) 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;

(5) 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;

(6) How courts engage with the law—theories of judicial interpretation of statutory and constitutional law, and the similarities and differences between them;

(7) The aspects of stare decisis and its legal and policy implications;

(8) Issues of statutory interpretation in its legal, political, and methodological aspects.

Chapter learning objectives. The central focus was on the orienting problem—Apparel Mart. The student will be expected to be able to identify and describe the distinct sources of liability that Apparel Mart might face, and to discuss very generally the different classes of liability, their character, sources and the place where they might be resolved. The remainder of the chapter provided a roadmap for the materials that follow. Students should develop a familiarity with this roadmap that will serve as the framework of thinking through the issues that follow.

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