Sunday, February 05, 2017

Preface (Chapter Summaries): "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.

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. 

This post is part of a group of posts that will provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions another set of posts will be used to circulate a chapter-by-chapter-based draft Teacher's Manual. Comments welcome for all.

 All contents posted on line may be accessed here:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

The Preface follows.

(George Washington, Charles Willson Peale c 1779-81 (American, Chester, Maryland 1741–1827 Philadelphia, Pennsylvania))


The story of the development of these materials is, in a sense, the story of wrestling with the problem of producing a course of study that might present, in a relevant, rigorous and coherent way, the system that is U.S. law. The problem is fundamental to the U.S. system itself. Unlike the law and governments of many states, the law of the United States emerges from the interplay of a number of sometimes quite distinct manifestations of “law,” which are woven together by the governments that now oversee them, the judges that apply them, the lawyers who must invoke them, and the citizens who must manage her life and expectations in accordance with their cumulative effects on her everyday activities. None of this comes easy. For the lawyer especially it requires the cultivation of an ability to understand how common law, equity, statutory law, administrative regulations, and soft law form a coherent system. That understanding is made more complicated because the United States weaves these distinct forms of law making into systems at both the state and the federal levels. Thus, when one speaks about the law of the United States, one speaks about fifty-one such legal systems, along with the systems of the District of Columbia, U.S. dependencies, and the commonwealth of Puerto Rico. Law students tend to pick this up in bits and pieces over the course of three years of study. But that learning is serendipitous and usually unstructured. Foreign lawyers who come to study in the United States will be offered perspectives usually through “Legal English” courses—that introduce vocabulary the main substantive elements of several fields of law. But they get little feel for the way the system works—the cultural framing within which the operation of the system can be understood—as a system rather than as a motley collection of rules conveniently divided into “fields” for ease of substantive study. Others will study bits and pieces from the perspectives of their own disciplines—international relations, business, politics, economics and the like—just enough, from the perspective of their field, to make the system more or less intelligible.

The story starts with an effort to try to explain to law students, in a systematic and comprehensive way, the operating concepts of the system that will be the object of their study over the course of their three years in law school. But it quickly became apparent that what might be useful for law students would be even more useful to the foreign lawyer, the student of international affairs, to the student of business, and to advanced undergraduates whose own studies required them to understand the legal system of the United States, and in some cases engage with lawyers. One is a better lawyer for understanding that common law is at once a historical development of law, a set of substantive rules divided into contract, torts and the like, and a method for approaching the application of law in a quite distinctive way. One is a better lawyer for understanding how these judicially supervised areas of law intermesh with statutes (with which judges have a different relationship) administrative rules and other rules that bind people and create obligations. But one is also better able to operate in the worlds of business, of international relations, and in administrative and nongovernmental agencies if one had a much more structured knowledge of the way U.S. law “works.” That knowledge is increasingly essential in a world that has embraced the legalization of large areas of conduct once quite distinct from law.

In effect, it seemed important to teach students that law is a method of thinking as well as of applying. That effort, I thought, required a short but sustained study—a concepts course that would avoid the overwhelming abstraction of jurisprudence courses or the perhaps narrow toolkit approaches of legal English and statutory interpretation courses. It is for all of these groups, all seeking to understand that complex system that has now become central to the workings of law, business, politics, international relations, and related fields, that the work was ultimately developed.

The opportunity to make good on at least an initial aspect of these ideas first came in 2010, when 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 concepts course either of the applied or theoretical kind. Its object was to orient students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. These efforts were 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, or the like. In other places the focus is more theoretical, focusing on theories of law, justice, or jurisprudence.

Few of these efforts, however, appeared 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 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. Moreover, the course focus on legal methodology as it arises in the legal profession across many substantive areas of law appeared to provide an initial venue for developing around conceptual framework for the study of U.S. law.

The experiment lasted five years at Penn State Law, and continues in its School of International Affairs. During that time, and together with a number of remarkable students, I was fortunate enough to have been able to conceive of the basic elements of a course that was meant to provide students either just starting their course of study in law, advanced undergraduates, or graduate students (especially in international affairs and business) with an introduction to the legal system of the United States. That introduction would provide a way of combining theoretical foundations (answering questions: what is law, what is a legal system, what is distinctive about the U.S. legal system?), with structure and operation (answering questions: how is law created, interpreted and applied?), and practice in the processes of legal reasoning and analysis common to the U.S. legal establishment.

At the very beginning of this experiment, my one great frustration in course development centered on coherence and coordination. The materials required a robust theme to hold them together, and the course as a whole had to make sense to law students in relation to the traditional first year law curriculum. The course description provided great flexibility, to be sure, but it also left the student to try to figure out for herself, the “sense” of the course in her studies. At best students might find the course filled with something perhaps new and innovative, or at worst, they might see in the materials a vapid and duplicative of aspects drawn from the rest of the conventional first year curriculum of no “use” to them. Students are likely to sense either, or anything between and react accordingly. Indeed, the great danger of courses like "Elements of Law" was to avoid the focus solely on the mechanics of statutory construction, judicial reasoning and the like, which would duplicate the core pedagogical objectives of the other first year courses but would be viewed as less useful precisely because the materials would seem detached from the teaching of any substantive area of law. The course thus was situated in pedagogical ether, mechanics without a grounding in substance, at a time when students clearly require some sort of anchoring of knowledge.

Moreover, given my ambitions for the course, it would have to meet and overcome the formidable obstacle of perceived relevance; it would 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) might see it. That last point should suggest that an unconventional course, such as "Elements," ought 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. or LL.M. This was an important consideration, not merely to satisfy the perceived needs of students and the labor markets on which they are dependent, but also to satisfy academic colleagues, who have also developed an sense, of course value and program coherence. To overcome these fears and considerations, the materials would have to avoid ambiguity, to provide students with a sense of its place and value for their studies, and to convince students that there was a valid reason for the use of precious faculty resources in a tightly structured first year curriculum. That, in effect, was the problem I posed for myself.

I started by structuring "Elements of Law" as a concepts course. Its objective was to reveal to the student the basic ideas that together is understood as U.S. law—its structure, culture, methodology, and vocabulary. For the law student—domestic and foreign—the notion also 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 principles. 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 a concepts course add to these rich first year training offerings? If it is to serve any purpose at all, it 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 contracts and the like. But that objective can prove of equal value to the student of business, international affairs, and the social sciences. Though in that context, the value is in the understanding of the language and culture of law that now becomes a more important component of the operations of their fields in practice.

The 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 of 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. 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. To that end the contextualization of law within a state apparatus becomes important in several respects: 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 them 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.

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 focused the materials on the policy and political effects of statutory construction of socially controversial issues. 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. 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 silo effect of legal education. To that end I produced an initial syllabus.

I taught the course for the first time in the Fall 2010 term. 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 profit from substantial refinement. 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 again before publication during the 2011-2015 academic years. It should come as no surprise that the reception of the course by students was initially 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).

And, indeed, the effects of that culture in the face of stress and turmoil in markets for law students had an impact on assessments of the relevance of a concepts course in times of uncertain labor markets. The consequence included stronger and more divided reaction among students. Students were looking for substantial value added for their time in class leading to employment. 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 on “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.

The year 2014 saw the first attempt to broaden the reach of the materials and to make them accessible to both foreign and graduate students. The first run was quite useful in suggesting the power of problems as a bridge between the materials in the book and the engagement of the students. Students appeared better able to understand concepts with a deeper engagement in problem solving. That also improved what had been a problem with the law-focused version of the course—the issue of deepening knowledge retention. Some law students, like many others, have found it increasingly difficult to deal with complex theory, and sometimes with vocabulary that was new to them. My experiences with foreign students helped me encourage native English speakers in ways in which the language of the law could be made more accessible. Indeed, recent experience suggests that foreign and graduate students were as capable as law students of grasping even the more complex theory and to learn the cultures and language that constitutes law in the United States. Foreign students, in particular, were interested in grasping the underlying ideology and analytical cultures of U.S. law, perhaps because they had a built in “comparative law” perspective.

The last and most satisfying run through was in academic year 2015 when I taught the materials to a smaller group of international affairs, law, and foreign students. For the first time I wrapped the materials around problems that were used to introduce each concept. The problems were drawn from contemporary life. That provided the students with a means of engaging with the concepts that followed in the more theoretical sections. It added just enough engagement for students to better own the materials and become, in the jargon of the day, better active learners.

I have come to believe strongly 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 that law and the lawyer's role in society is embedded. The lawyer is not isolated form from the society she serves; neither should she be educated as if this were the case. Likewise, a concepts course that provides a framework for understanding law as a system provides the basis for more rigorous and sound lawyering. At the same time, to segregate law as something arcane and apart from the rich fabric of politics and policy, ill-prepares the student of politics and international affairs from the increasing importance of law and legal methodology to the construction of governance systems both within and among states and other transnational actors central to these disciplines.

I emphasize that the materials are not meant only for the law student. I have found that the graduate students in the Penn State School of International Affairs profited from these materials for their own studies of politics and policies. 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 student of comparative systems 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. And the business and international relations student is interested in the language and conceptual framework—the world view of law and the lawyer—that is becoming an increasingly important part of the operations of business and in the expression of public policy. 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 benefit from freeing the materials from 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 complicated elements that comprise the U.S. legal system for students. For the law student the materials are meant to enhance the first year experience, 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. For the student of international affairs the materials are meant to contextualize the framework within which much policy is ultimately crafted or implemented. It provides a basis for policymakers and analysts to better understand and to talk to lawyers. For the business student the materials are meant to frame the rule systems against which business must operate and which provides the structures of rules that constrain economic activity. For the advanced undergraduate the materials serve to unpack the system of U.S. law in ways that may enrich the study of U.S. history, politics, sociology, and culture. For the foreign lawyer, the materials are meant to provide a comprehensive introduction to the language and logic of U.S. law, sufficiently sophisticated to enable the foreign lawyer to more easily transition from the cultures and expectations of her domestic system to the peculiar cultures and methodologies of the U.S. system.

All of this is undertaken through a rigorous and methodical exposition designed to provide materials that emphasize the systemic and policy characteristics of the legal system of the United States, of substantial interest to politics, international relations, and business students. These more theoretical, policy materials, the macro systemic studies are also tied to the technical structures and operation of law of more interest to law students. Thus, it is possible to teach (and study) the materials presented with either an emphasis on systems and theory or on the more methodological and technical applications of that system within the body of governance that is the United States legal system. My sense is that law students may prefer the latter approach, while students of international relations and the social sciences would tend toward the former. But any combination of the two is possible as well, given the flexibility permitted by the choice of materials.

The application of the course to the contemporary scene necessarily 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. The analysis, thoughts, reactions, and suggestions of those who use these materials 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, 2013, and 2014, and to my School of International Affairs students in my Introduction to U.S. Law and Legal Systems class, all of 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 assistants Damian Fiala (Penn State Law J.D. 2016), Anthony Chistina (Penn State Law J.D. 2016), Angelo Mancini (Penn State Law J.D. 2017), Victor Whitman (Penn State School of International Affairs 2016), and Cass Ford (Penn State School of International Affairs 2016), who rather than fleeing from the materials after they had mastered them in class, returned to help develop them further.  Angelo Mancini deserves special recognition for his  help in moving the project from initial draft to final product over the course of several months, and to all my students who were willing to be blunt in their assessment of earlier versions. I owe much to your insights. I especially appreciate their honesty for the student perspective on the materials. Without them, it would have been harder to produce materials that were relevant to students. My special thanks to Shan GAO (Penn State SJD expected 2017) whose skill in law and in the arts of translation will make the Chinese language version of this book both possible and accessible. Lastly, I thank my editors at Carolina Academic Press, whose support and patience has made this volume possible.

Larry Catá Backer
State College, PA 
January 2017

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