« Rotations | Main | Thought That Record Was Sealed? Not Quite. »

Tuesday, October 17, 2006

Wal-Mart: The Class

In his recent post, Brian Tamanaha, in the course of talking about the effect of an instrumentalist legal education on lawyering, revisits the transition from Langdellian legal orthodoxy (using the case method to elicit the correct rule) to an instrumentalist approach to cases as “tools in the hands of lawyers.” I’d like to add a different approach to the teaching method that my colleagues Kaaryn Gustafson, Jon Bauer and I have been experimenting with: the non-case law case study.

This semester, we are teaching a course on Wal-Mart that looks at this enormous company from various legal angles: antitrust (and monopsony theory); discrimination; welfare and poverty law; institutions and the legal system; land use and environmental law; immigration; trade; human rights; banking regulation; and more. The approach has really inspired students, who come in with all kinds of materials (from news articles to barbecue sauce) relating to Wal-Mart. Even my colleagues have gotten into the game, watching for legally significant Wal-Mart news and passing it on. Two law reviews are hosting a symposium on the issue this weekend. 

There are a lot of interesting things about this project, but for this post I’d like to point to the curricular issues and respond to the concern regarding moral relativism in law schools: Wal-Mart: The Class shows how the subjects of law are interrelated in the world of practice and how law is not merely a tool to be dissected and used without moral valence, but has real consequences that are affected by lawyering. I don’t think students often get this from the regular single subject-matter classes. Personally, while I started out being more or less against Wal-Mart, I learned how structurally embedded and complicated the concerns raised by this behemoth corporation really are and this is what I hope my students will learn as well. Wal-Mart is not merely a political player, the private largest employer in the world, and a purveyor of discount goods, but it is also a condensation symbol that allows us to talk about the structure and effects of law and the normative questions implicit in law. I am very interested in hearing what other people think.

Posted by Alexandra Lahav on October 17, 2006 at 12:18 AM in Life of Law Schools | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Wal-Mart: The Class :


On the Law of the Horse question and the organization of your course around Wal-Mart, I should think that you might be interested in thinking about this course as a revival of the Legal Realist approach, in which some of the Realists attempted to organize their casebooks around particular social categories rather than organizing them around doctrinal concepts. Of course, one could also reflect on whether and/or why this effort was a failure. I stress "whether" here because one can certainly argue that the nature and contents of the casebook changed significantly post-Realism.

Posted by: Paul Horwitz | Oct 17, 2006 4:44:05 PM

"biggest corporate welfare queen"

ah, 'corporate welfare'...is that like 'corporate greed'?

Hmmm, i really hate corporate welfare. I really hate marriage welfare, homeowner welfare (interest deduction), poor people welfare (EITC), chinese welfare (foreign tax credits and manufacturing income deferral), small business welfare (beneficial treatment accorded to S-corps), and just about anything that doesn't ensure the widest tax base possible. Gosh, anyone who doesn't turn over 100% of his income to the government must be getting WELFARE!

Posted by: andy | Oct 17, 2006 2:20:56 PM

Much as I hesitate to incur the Wrath of Litvak, I must point out that Easterbrook most certainly was not there first. English lawyer Marcus D. Hanover beat Easterbrook to the punch by more than a century, with his Practical Treatise on the Law of Horses (1872). Over on this side of the pond, we have the great work by Samual Warren and Louis Brandeis on The Law of Ponds, 3 Harv. L. Rev. 1 (1889). Of course, unlike Easterbrook (who Kate evidently admires for his snide attitude toward anyone with whom he disagrees), Hanover, Warren and Brandeis took their subjects seriously, recognzing (as Laura Heymann notes in her comment) that real lawyers don't encounter legal issues wrapped up in neat doctrinal packages, but rather in the course of representing clients whose activities -- whether in relation to horses, ponds, or the biggest corporate welfare queen in the history of monopoly capitalism -- give rise to problems that cross doctrinal boundaries.

Posted by: The Continental Op | Oct 17, 2006 12:42:12 PM

Scott: If that’s what Alexi meant, she is still deeply wrong, and for the same reason. The reliance on foreign manufacturing has nothing to do with the “stress on low prices” on the sales’ floor. All of my Diane von Furstenberg dresses are made in China, even though “stress on low prices” is most empathically not a part of the DVF’s motto, and neither is it the motto of Bergdorf Goodman or Saks, where those dresses are sold. Many high-end European designers moved parts of their operations to China, and the rest are using European manufacturers mostly as a marketing gimmick, to appeal to racist local attitudes (“only Italians can make high-quality bags”).

Posted by: Kate Litvak | Oct 17, 2006 12:35:46 PM

Re Kate: When Alexi said, "Low prices mean manufacturing moves to China," I don't think she was saying that Walmart's low prices "cause" manufacturing to move to China; I understood her to be saying that Wal-Mart's stress on law prices means that it has to rely on cheaper foreign manufacturing.

Posted by: Scott Moss | Oct 17, 2006 11:13:40 AM

Ok, so I actually was persuaded that the "Law of the Horse" class was a great idea, and it turns otu it wa sa joke. I don't know whether that means (a) I'm gullible or (b) Easterbrook is so incisive that even his jokes are darn good ideas.

Seriously, a class that focuses on an industry/company -- whether Wal-Mart or horses -- can give students a really valuable perspective on (a) how laws interrelate and (b) how you'd actually represent a client concerned with all the laws, not just the one being discussed in class. One reason I like teaching Employment Law is that even though that's one area of law, a given client or situation can implicate contract law, tort law, wage statutes, whistleblower protections, etc.

Posted by: Scott Moss | Oct 17, 2006 11:11:02 AM

Low prices mean manufacturing moves to China or other countries, resulting in less high wage manufacturing jobs in the US, see low wages above.

Walmart's low prices cause manufacturing to move to China? And turning leaves cause the temperature to fall, right?

Posted by: Kate Litvak | Oct 17, 2006 10:45:36 AM

Kate, I'm not so sure that this is the law of the horse in action. Easterbrook was arguing against the study of cyberlaw as an independent field of inquiry, and it doesn't seem from Alexi's description that the Wal-Mart course is intended to suggest that a course focusing on Wal-Mart, or on any other single entity, should take up residence in the law school curriculum because it provides additional theoretical insights not available by studying the basic doctrinal subjects. Rather, it seems to me that the point of the course Alexi describes is to demonstrate to students that clients don't have problems in doctrinal vacuums -- that good lawyering depends on the ability to see how a client's employment issues might relate to its real estate issues, which might relate to its tax issues, and so on. As a former in-house counsel, I can say that I valued outside counsel who could take a broader view of my employer's legal needs.

Posted by: Laura Heymann | Oct 17, 2006 10:39:27 AM

Have you seen Nelson Lichtenstein's edited volume, Wal-Mart: The Face of Twenty-First-Century Capitalism (2006)? I think it grew out of a conference here at UC Santa Barbara not long ago. Lichtenstein is an excellent labor historian in UCSB's History Dept. The title would seem likewise to suggest that Wal-Mart is viewed, for better and worse, as a 'condensation symbol.' Perhaps the students could benefit in particular from a number of 'background books':

Joel Bakan. The Corporation: The Pathological Pursuit of Power. New York: Free Press, 2004.

Scott R. Bowman. The Modern Corporation and American Political Thought: Law, Power, and Ideology. University Park, PA: Pennsylvania State University Press, 1996.

Stanley A. Deetz. Democracy in an Age of Corporate Colonization: Developments in Communication and the Politics of Everyday Life. Albany, NY: State University of New York Press, 1992.

Jeffrey Harrod and Robert O'Brien, eds. Global Unions? Theory and Strategies of Organized Labour in the Global Political Economy. New York: Routledge, 2002.

Raphael Kapinsky. Globalization, Poverty and Inequality. Malden, MA: Polity Press, 2005.

William I. Robinson. A Theory of Global Capitalism: Production, Class, and State in a Transnational World. Baltimore, MD: Johns Hopkins University Press, 2004.

Posted by: Patrick S. O'Donnell | Oct 17, 2006 8:23:41 AM

It sounds like a fascinating course. I would be interested in hearing more about the materials you use for the course. Also, have you been able to get any Wal-Mart employment or purchasing contracts? It would be interesting to go over the actual documents with students; it might make the class more akin to a "deals"-type course.

Posted by: Matt Bodie | Oct 17, 2006 7:53:20 AM

"low wages mean workers can't shop anywhere else, can't pay for health insurance, can't support their families without additional government aid (medicaid, medicare, welfare)"

yeah, it'd be so much better if we shut down walmart so they wouldn't have any jobs, rather than low-paying ones.

Posted by: andy | Oct 17, 2006 7:52:15 AM

As I remember it, Easterbrook was speaking derisively of cyberlaw as the law of the horse, the implication being its completely unnecessary to study the law of the horse when you have torts, contracts, etc. Maybe that is what you mean. But I am wondering, and the jury is still out, is there some value to teaching the law of the horse, or in this case, the law surrounding Wal-Mart? If so, why don't we do it?

As for the costs and benefits of Wal-Mart - there is so much written on this and we'll soon have a website up that links to the various pro and anti-Wal-Mart position papers. There was a really excellent exchange on the very topic you raise -- cheap goods v. low wages -- in Slate recently. I will try to track down the link. Some of the arguments against Wal-Mart (and of course there are counter arguments against each): low wages mean workers can't shop anywhere else, can't pay for health insurance, can't support their families without additional government aid (medicaid, medicare, welfare). These are maintained in part by a strong anti-union policy that has been said to violate the right of workers to associate and farming out of some jobs to undocumented immigrants paid even lower wages through sub-contracting (there is a RICO suit filed against Wal-Mart for this practice). Low prices mean manufacturing moves to China or other countries, resulting in less high wage manufacturing jobs in the US, see low wages above.

Posted by: Alexandra Lahav | Oct 17, 2006 6:10:05 AM

I've always thought that Walmart is wonderful. It provides more and better food and clothing to more needy Americans than any other company, doesn't it? In light of that, I'm kinda interested in knowing why you started off "being more or less against Wal-Mart." Or are my facts wrong?

Posted by: john harlan | Oct 17, 2006 3:10:39 AM

As usual, Frank Easterbrook was there first. The law of the horse. A unified course showing deep connections across traditional subjects and revealing the role of lawyers in society. People who got bitten by horses. People who fell off horses. People who sell horses. Theft of horses. Treating of horses by veterinarians. Regulation of horse races. I am waiting for someone to pick it up.

Posted by: Kate Litvak | Oct 16, 2006 10:49:36 PM

The comments to this entry are closed.