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Wednesday, December 13, 2006

Curricular Reforms and New Governance – Part II: The OUP Series "Twenty-First Century Legal Education"

An email and a post by Mark Tushnet have prompted me to post some more thoughts on the (new) legal process and legal education. As I described a couple of weeks ago, the HLS reform focuses on cutting down traditional first year courses (contracts, torts, civ. pro, crim, property) and adding 1st year requirements centered on legislation, international law, and “problems and theories”, all designed to give more emphasis than before on the role of statutes and regulations, public law processes and actors, institutions and systems.

A national development has been a collaboration effort beginning a few years ago among, then Georgetown law professor Mark Tushnet, Harvard law professor, Martha Minow, who chaired the HLS curricular reform committee, and the energetic and creative (then) new dean of Larry Kramer. The collaboration is designed to produce a series, called Twenty-First Century Legal Education, consisting of first year casebooks to be used at schools adopting such reforms. Oxford University Press is the publisher of the series which focuses on adding the public law dimension to the first year curriculum. OUP describes the series as a response to the need of lawyers to "understand statutes associated with the modern regulatory state." OUP just published the first volume of the series, “the Regulatory and Administrative State” by Tushnet and Lisa Heinzerling.

I liked the book, which introduces questions about the choice of legal institutions, types of regulatory instruments, regulatory dilemmas and paradoxes, and focuses in particular on risk regulation as a unifying context. I admit to be somewhat sold on the project based on the fact that the very last chapter, which introduces "new perspectives on regulatory issues" includes a long excerpt of my article, Interlocking Regulatory and Industrial Relations: The Governance of Workplace Safety. The article's focus is on regulatory responsiveness, enforcement and compliance that involves industry in a more active and less adversarial way in risk assessment and prevention. The article won the Oberman memorial award last year for the best article on a current legal issue on law and governance.

Tushnet describes the first volume of the OUP at length on the Georgetown law blog:

"We gave the book its title to signal that this was not a scaled-down or introductory administrative law book. We begin, not with topics in administrative law, but with the “classical,” that is, common law, mode of regulation through the imposition of liability in tort and contract. We do this for pedagogic and intellectual reasons. Pedagogically, efforts to introduce administrative law and statutory interpretation into the first year typically have foundered on the “trans-substantive” nature of those fields – that is, the cases and problems typically come from quite disparate fields of law, leaving students confused about exactly what they are supposed to be learning. That problem infect s even second- or third-year courses in statutory interpretation, but is a smaller problem in upper class administrative law courses because students there already have had a fair amount of exposure to substantive law, which is not true of first-year students.

If, as some have done, one tries to solve that problem by focusing on a particular field like labor law, students tend not to understand that they are learning statutory interpretation and administrative law, and think that the course is one in labor law. Professor Heinzerling and I address this difficulty by defining our field of interest as risk-regulation, which includes topics in the regulation of risk in the workplace, the environment, and the (food) market. This also has the pedagogic advantage of dealing with subjects that students typically find substantively interesting. That alone wouldn’t explain why we start with common-law regulation. One reason is that we think it’s important to get the message across – or to reinforce the message that students are getting in their common law courses – that contemporary statutory and administrative regulation is continuous with classical common-law regulation, and that the reasons for the displacement of one by the other are more process-based than substantive.

At most – and we could have done more about this in the course book than we did – there are ways of regulating that might be somewhat easier to pull off through the administrative process than through the judicial one. So, we spend quite a bit of time developing the rationales for regulation of risk. (This doesn’t get us to all the possible justifications for regulation, but the field of risk-regulation is broad enough to get us quite a bit. And, as I note below, the book is conceptualized so as to allow others to supplement it with material from other substantive fields.) Students will see, we think, that the modern regulatory and administrative state doesn’t do things conceptually different from what the common law state did.

In addition, we think it important to show how the modern administrative state emerged out of the common law state, and specifically what problems associated with common law regulation of risk are addressed by administrative regulation. That creates what we hope is a natural flow into statutory interpretation and administrative regulation: Exactly how does the modern mode of regulation attempt to address the problems we’ve seen with common law regulation? And – and here’s where the standard administrative law topics come in – what are the problems associated with risk-regulation through administrative regulation? Because students will have already examined the justifications for regulation and the problems with common law regulation, identifying problems with administrative regulation leaves them in a position – the right position, we think – to think about which set of problems is more severe, rather than, for example, thinking that regulation should be abandoned despite its justifications because administrative agencies and legislatures are pervaded by public choice problems.

We think that our approach overcomes, or at least substantially lowers, the hurdles faced by prior efforts to introduce regulation and administrative law into the first year curriculum. Because of its emphasis on the justifications for regulation (again, as a way of providing a glue across substantive topics), our book has less material on administrative law as such than, for example, administrative law course books do. We think that we’ve made the right pedagogic and intellectual choices in doing so, but there are other mid-level ways of introducing statutory and administrative material into the first year curriculum that have some promise: treating the materials as a way of introducing students to a distinctive way of reading, for example, or to general problems of separation of powers. We think that teachers who were so inclined could use our materials to do those things too, and indeed we do a reasonable amount ourselves. (The book has quite a bit about public choice analysis of the legislative and administrative processes, for example, and presents materials discussing the relevance of that analysis to normative issues in statutory interpretation.) We think we’ve struck a better balance than existing materials do – and, indeed, our hope is that the book will tap a latent demand for materials that could be used in curricular revisions elsewhere.”

Posted by Orly Lobel on December 13, 2006 at 12:48 AM in Life of Law Schools | Permalink

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