Monday, November 05, 2007
1L Legislation and Regulation Courses
Forgive me for coming late to the party. But this article in the NY Times has sparked the latest round of discussion about curricular reform. For my part, I'm most interested in the "new" adoption of 1L Legislation and Regulation courses -- so here let me leave to one side the other proposed reforms discussed in the article and elsewhere. In some measure that's because I'm supposed to be writing an article for the Journal of Legal Education about the renewed interest among some law schools in these courses. But, perhaps more importantly, I also teach one of these courses to 1Ls here at Hastings.
Let me try to understand the two recent critiques offered of these courses, one by Richard Pierce and one by Brian Leiter. Boiled down to its essence, Pierce is simply pointing out that these courses have been tried before as 1L additions -- and have failed. So we shouldn't give Harvard the credit for "innovation"; it is an old idea dressed in a good PR campaign. And we shouldn't be optimistic about its adoption because it has failed before -- at UVA and Columbia.
The first critique seems right. These courses have been around for a long time; and Hastings has had a "statutory" component in its 1L curriculum since the mid 90s. But that is hardly a serious criticism. What is more important, it seems, is whether it is true that the courses keep "failing." Indeed, at Hastings there has been a good deal of whining about the statutory course and its failure too. But what is the relevant marker of a failure? The very fact that UVA and Columbia abandoned the courses in the recent past is some evidence of the failure. But Pierce largely emphasizes student discontent. Even if it were true that students generally dislike statutory courses in the first year, it hardly follows that the courses are "failures." Failure might be measured based on whether the courses actually help prepare students for the practice of law, something students won't know for some years to come. Based on anecdotal evidence, I'd suspect Pierce is right that students find these courses hard to understand, oddly organized, and otherwise difficult. But if asked a few years out of law school, I'd guess that students appreciate the courses as one of the most important in their curricula. My students who hate the course when they are in the thick of it come back from their summer jobs with a general sense that my course was the only one they "used."
Leiter's critiques are somewhat harder to understand. Here's the whole of his analysis:
The fact is that (1) being "trained to think like a lawyer"--which really means (a) honing analytical and argumentative skills of general applicability (legal reasoning is distinguished only by the fact that arguments from authority are not fallacious) in the context of (b) law-specific institutions, rhetoric, and categories--and (2) learning substantive rules and principles in different areas of the law, are tasks that law schools can actually discharge, and that good law schools do discharge. Certainly there should be substantial clinical opportunities (and a variety of them) and the like, but the perennial idea that law schools need curricular reform strikes me as being ill-motivated by any actual evidence.
It may be that Brian is targeting his criticism elsewhere (at the call for more clinical courses or externships?). But to the extent that he is arguing that we shouldn't change the 1L curriculum (and add 1L statutory courses) because it is unsupported by evidence, I suppose I am puzzled: Why should change require the burden of evidence when the status quo is similarly unsupported? Indeed, if all that law school is supposed to impart is "thinking like a lawyer" and "learning substantive rules and principles in different areas of the law," why should we be sensitive at all to the particular subjects in the first year? Well, I think we should be because we have a responsibility to give certain exposure and foundations in the first year. In a future post, I'll hope to say more about this.
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According to the Carnegie Report and Best Practices in Legal Education, law schools are not adequately preparing students for the real world. Most of our graduates will not be law professors, but practicing attorneys. We are not preparing them for the ivory tower.
There are many ways we can better prepare our students for practice. One way is to change the upper-level writing requirement from scholarly papers to litigation or drafting documents. Most of our students are not going to be writing scholarly papers. Another way to better prepare our students for practice is to incorprate skills into doctrinal courses. For example, we could grade students on their ability to prepare documents based on the doctrinal material they have learned, instead of or in addition to exams. Third, we could use other methods of instruction than the socratic method in our classes, such as the problem solving approach or the case approach that business schools use. Fourth, we should have students look at more documents in their first-year courses. When I was in law school, I was never shown a complaint, an answer, a motion for summary judgement, a deed, a contract, a will, etc. Finally, we could co-teach courses with practioners, so that the practitioners could bring a real world prerspective to the classroom.
Posted by: Scott Fruehwald | Nov 5, 2007 1:17:54 PM
With all due respect, your comment is somewhat non-responsive. Of course, we welcome all comments -- but I did try to bracket all of your potentially valid concerns. I'm focused here merely on the substantive courses to be included in the 1L curriculum. And my suspicion is that adding a statutory course to the 1L year actually addresses your concerns because it is a course that almost all "real-world" lawyers will have an opportunity to use in their careers, something that probably cannot be said of Con Law, Torts, Civ Pro, etc. The average lawyer will work with statutes (and likely regulations) in some area or other -- and the course's focus is on the general skills to help students read them well.
Of course, some would argue that, e.g., the Model Penal Code, the Federal Rules of Civil Procedure, and the UCC give students all the statutory exposure they need. I once thought that too. But I now think that professors simply can't and won't use those "statutes" to teach the skills of statutory interpretation and the foundations of the regulatory state.
Posted by: Ethan Leib | Nov 5, 2007 1:45:08 PM
I read Leiter's comments that you included to be broader than the first-year curriculum. However, concerning the last paragraph of your reply to me, I agree with you completely. Students need a course in statutory analysis that goes beyond specific doctrinal areas. There are techniques of statutory analysis that all students need to learn. Perhaps the problem is that it shouldn't be taught in the first year. I have taught such a course several times to second and third years, and I have found that they have a better grasp for the need for the course than first years.
Posted by: Scott Fruehwald | Nov 5, 2007 2:20:30 PM
A dean at Vanderbilt who does administrative law proposes such a course in the 1L curriculum at Vanderbilt. A dean at Harvard who does administrative law proposes supports adopting such a course in the 1L curriculum at Harvard. Every dean wants to leave his or her legacy, and better yet if it's in his or her field, but what's the news here? I have yet to see any evidence that such courses teach anything that could not be taught in a traditional course. At my law school, contracts and civil procedure and torts and property and criminal law teachers also teach about regulation and how to read statutes.
Posted by: anon | Nov 5, 2007 4:09:20 PM
I like the spin about Harvard and Vandy. But it really is obvious to anyone who teaches both a 1L substantive class and a separate course on statutory interpretation/regulation that you simply cannot train students in handling statutes and basic admin when you are busy trying to teach them something else. More, students won't focus on it, won't study it, and don't really get the skills element of the course when it becomes a mere appendage. Perhaps this is a question which "evidence" of a certain kind will resolve. But what is the evidence we are looking for? What students happen to like? And why should the presumption be that we stick with a law school curriculum developed 100 years ago, potentially ill-suited to our contemporary legal environment. I'm willing to be proved wrong. I'm just not sure why I carry the full burden of persuasion when 6 units of Civ Pro is a 1L requirement for corporate and criminal lawyers alike.
Posted by: Ethan Leib | Nov 5, 2007 4:43:07 PM
I too am scratching my head over why those introductory courses are considered failures. So the students didn't like it. So what? Statutory interpretation isn't for sissies. If anything, I'd say make 2/3 of the 1L curriculum statute based.
The reason that statutory interpretation courses might fail is that there simply is not sufficient context for a serious study of the subject during 1L year. That is, most 1L courses are taught, at best, from the perspective of a 15th century British common law judge, or, at worst, from the perspective of a modern day interdisciplinarian who only dabbles into the law (much less statutory analysis) only occasionally. A course on statutory interpretation -- if preceded or coupled with a course in environmental law, tax law, securities law, bankruptcy, etc. would be far more effective than a standalone course. That does not lead me to believe that regulatory courses should be knocked out of the 1L curriculum, but only that more statutory courses should be injected into that curriculum.
Posted by: andy | Nov 5, 2007 4:59:49 PM
Funny you should mention that alternative. At Hastings, we have a "statutory elective," where the students choose among Legislation and Statutory Interpretation (my course), Immigration, Environmental Law, Employment Discrim, and Tax. I think we also offered Food and Drug Law for a time. The tax course is a bit sui generis -- but even it exposes students to statutory law in context. I'm ambivalent, ultimately, about whether one can really teach the statutory skills through focused substance (since students will grab for substance whereever they can find it) -- but in listening to my colleagues sell their courses to 1Ls this week, they at least try.
Posted by: Ethan Leib | Nov 5, 2007 5:06:30 PM
I wonder if a statutory interpretation course could be improved through increased focus on drafting exercises and other "hands on" methods. My impression is that most statutory interpreation courses are taught by using a casebook and/or by examining famous statutory interpretation cases (e.g. Holy Trinity, TVA v. Hill, Griffen, Weber, Bob Jones, and the like).
In my opinion, rather than actually teach a student about statutory interpretion, those courses often impart the message that methods of statutory interpretation don't matter. Any hope that a student might learn something from the course after reading those cases is finally dashed when s/he reads LLewellyn's article on canons of construction which infamously (and incorrectly, in my view) demonstrates that all canons are a crock of $#%!!.
In any event, if legislation classes are a failure (a notion that I am not necessarily inclined to accept), I think it is because they are being done in the wrong way. I'm just thinking off the top of my head here, but were I a professor I might consider assigning a group of students the duty of drafting a complicated statute (e.g. "draft a statute that imposes X type of restrictions on drinking water), examining the student's work myself, coming up with questions that exploit ambiguities or loopholes in the drafted statute, and then asking another group to try to interpret it. That type of bare-knuckles analysis, I think, would be more useful than teaching only famous supreme court cases, which law students are too quick to dismiss as "results-oriented," and which, truth to be told, often are not particularly good models of careful, coherent statutory analysis (particularly given the tendence of justices to each want to their word in). Just my two cents.
Posted by: andy | Nov 5, 2007 5:23:17 PM
"(particularly given the tendence of justices to each want to their word in)."
that should say "particularly given the tendency of each justice to want to get his word in."
word of warning: staring at the tax laws and regulations for hours on end tends to fry one's brain.
Posted by: andy | Nov 5, 2007 5:29:42 PM
Frickey starts with such an exercise. I didn't do one last year because I had too many students. But I may try it this year. I do think reading the cases will remain important (especially on the admin side): even if you can't tell which methodology will win the day in any given case, you can get a feel for it -- and help students cover the bases of reasonable readings and how to construct an interpretive argument. It is, like much of law school, an education in grammar and the world of the possible. But I actually agree with you that part of the failure (to the extent it exists and explains the abandonment of the courses in previous generations) is the materials; it requires innovation to teach it well.
Posted by: Ethan Leib | Nov 5, 2007 5:35:24 PM
I agree the problem is the materials, and the answer is a very good book that came out last year, Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies, by two professors at Mercer Law, Linda Jellum and David Hricik, see http://www.cap-press.com/authors/796.
I used a third of it last year in my Torts II class to teach a statutory unit, and the students really liked it. It teaches students in a "hands-on" way how to "make arguments like a lawyer" about statutes, which I think is what these required reg state classes should focus on. And it has enough theory to ground the arguments as well.
Posted by: Jason Solomon | Nov 5, 2007 6:08:16 PM
As a 1L in the Fall of 1979, I had a required two-semester-hour course in legislative interpretation. This course taught me the language and structure of statutes and regulations in preparation for required courses in administrative law, partnership, corporations, tax, and commercial law, plus many electives. To confirm what others have said, the skills I learned in that course were really important in practice.
Distinguish between teaching legislative interpretation and teaching administrative law. The latter is law: Making rules, deciding contested matters, due process. The former covers practical skills. I see my 2L and 3L students trying to learn both at once. (I'm a librarian, so I get to work with all of them.) Without a firm understanding of how to read, interpret, and apply statutes and regulations, they are struggling (successfully, mind you) with statutory subjects.
I concur with Jason Solomon: The Jellum and Hricik book brings the process of working with statutes to life. I suspect I am telling readers nothing you don't already know when I say that in the administrative state the impact of legislation is large and growing. I submit that this subject is as important as Civil Procedure now, and will be even more important in the future.
Posted by: Ted McClure | Nov 5, 2007 10:42:10 PM
My introduction to statutory interpretation came in crim law, first semester/first year. The class focused on the Model Penal Code, so we spent a day or two learning interpretive rules, canons of construction, etc. And the whole class was about reading the code.
Having both taken and taught Legislation (using Frickey, et al) as an upper-level class, I agree it is a great and essential class and the students seemed to enjoy it. Two problems with putting it into the 1L curriculum: First, do students need certain background in other subjects (especially con law) before they truly can get the material (at least from that book)? Second, what do you do about the competing pressure to make international and/or comparative law part of the 1L curriculum, supposedly to best train the "lawyers of the future."
Posted by: Howard Wasserman | Nov 5, 2007 11:37:14 PM
The assumption some of you seem to making is that statutory interpretation occurs in a vaccum. It doesn't and I think we mislead our students by suggesting that it does. I don't know whether you can give 1L's a meaningful introduction to Chevron and Mead before they have studied separation of powers. I am also skeptical of my colleagues who purport to teach "canons" of interpretation to 1L's -- giving them a laundry list of interpretive tools is dangerous, in my opinion. For example, can you really provide 1L's a meaningful appreciation about canons, such as the rule of lenity or federalism canons until they have studied due process and federalism? The canons are already abused enough without arming every 1L with them!!!
I wonder. Would it be better to teach statutory interpretation through negligence per se in a torts class? In my opinion, they could learn more about reading a statute, discerning purposes, and issues such as deference in the context of seeing some legal purpose, including a competiting common law approach. Why would a separate course on regulation be necessary to do this?????
The bottom line for me is that legislation and statutory interpretation occurs against the backdrop of the common law, even in highly regulated contexts (securities law, for example, comes to mind).
Posted by: anon | Nov 6, 2007 9:23:46 AM
This is a good place to plug in the plenary session my AALS committee on Curricular Reform (chaired by "The Vandy Dean") is organizing for this January's NYC meeting, featuring "The Harvard Mastermind Behind their First Year Reforms" as well as the lead author of the Carnegie Report on Best Practices in Legal Education.
Do plan to attend and make yourself heard!
Posted by: Orly Lobel | Nov 6, 2007 12:17:51 PM
I don't understand all this handwringing about legislation/statutory interpretation for 1Ls. Criminal Law is statutory, and it is part of most law schools' first year curriculum. What's the problem? Legislation/Statutory Interpretation/Regulation course for 1Ls is a solution in search of a problem.
Posted by: observer | Nov 7, 2007 8:56:44 AM
University of Chicago Law School also teaches statutory interpretation to 1Ls as part of the Elements of Law class. There have been several attempts to remove it over the years for more "substantive" subjects (such as constitutional law, which at U of C is not a 1L class). But many students and alums look back on it as one of the most useful courses they took.
Posted by: anon | Nov 8, 2007 7:27:53 PM