Leib, E J --- "Adding legislation courses to the first-year curriculum" [2009] LegEdDig 11; (2009) 17(1) Legal Education Digest 38

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Adding legislation courses to the first-year curriculum

W J Leib

58 J Legal Educ, 2008, pp 166–184

Charges that legal education (at least in the most elite schools) is out of touch with legal practice are old ones; and many professors scoff at conversations about curricular reform because they know they’ve had these conversations before, in one form or another. Indeed, despite the sometimes optimistic tone of today’s reformers that we are on the verge of a breakthrough, experimentation with the law school curriculum is hardly a 21st century phenomenon: For example, the Critical Legal Studies movement sought (and temporarily succeeded in some places) to reshape the basic curriculum. Some law schools have self- consciously organised their curricula to promote social justice activism and make clinical education much more central to their pedagogy.

The cycles of excitement for reform present new opportunities to focus attention on some of the well-known ongoing pathologies in legal studies education and to develop further thinking and empirically grounded research about elements of that decades-long struggle to harmonise legal education with modern lawyering.

There is perhaps one more reason not to ignore today’s cycle of reform enthusiasm that might set it apart from generations previous: the standard-bearer of legal education, Harvard Law School, has actually tinkered with its first-year curriculum in a very public and visible way. To the extent that many schools march to the beat of Harvard’s drum, this change by a single school may have dramatic ramifications for legal education more broadly. After all, the vast majority of law schools modeled their pedagogy — whether directly or indirectly — on the methods of Harvard’s famous Dean from 1870 to 1895, Christopher Columbus Langdell. Of course, many schools adopted some of the recent ‘Harvard changes’ before Harvard did — but no other school has done so quite as visibly and no school is as likely to instigate a copycat phenomenon. Although, to be sure, Harvard has experimented with changes in its first-year curriculum before, the recent announced changes are not being treated as experimental; they are less difficult to replicate, integrate, and adopt; they have been met within the Harvard faculty with the sort of enthusiasm and consensus that will likely sustain the changes for a long time. And although Harvard’s inclusion of International Law in the required first-year curriculum has been treated by some as having political and ideological content, the rest of Harvard’s recent choices have not provoked political opposition.

My task here is to discuss only a small piece of the larger reform conversations of the day, focusing on one element of Harvard’s curricula reform: the reconstructing of first-year curriculum to include a freestanding ‘Legislation and Regulation’ course. Although it may seem hard to isolate one piece of a reform agenda for analysis without addressing some of the larger animating concerns of the reform debate, I aim only to lay out the case for why law schools should consider adopting some version of this particular reform, recently embraced by Harvard’s faculty unanimously.

For a long time, the standard first-year curriculum has been badly out of synch with what lawyers actually do. The particular way it is out of synch for my purposes here is that the first year slate of courses tends to be dominated by a judge-centred perspective on the law, in which all legal questions are answered by people in black robes — and generally black-robed people at the appellate level. That neither reflects reality, nor approximates how lawyers need a sophisticated understanding of the law-making process and they need to acquire sensitivity to methods of reading statutes and regulations to facilitate their clients’ compliance with the law. Reading appellate cases well can be an important skill as well, of course, but it is hardly so central a skill relevant to the practice of law that training alone should dominate the first-year curriculum in the way it does.

Mandatory first-year Legislation courses could be designed to overcome many — though obviously not all — of these pathologies. First, in light of what Guido Calabresi famously called the ‘stratutorification’ of American law, they could help cure students of their excessive attention to appellate arguments and judge-made common law in their first-year coursework. They could also contribute to instilling in students some respect for the hard work of our primary law-making vehicles: our federal, state and local legislatures.

Moreover, by mandating the courses in the first year, schools can remain confident that their students are being exposed to skills in reading and interpreting statutes and regulations that are likely to comprise their ultimate practice of law and that they are exposing students to a broader range of practice opportunities than first year generally permits in its virtually singular focus on litigation-oriented jobs.

Furthermore, by putting the courses in the first year, schools can ensure that students are taking the courses when they are at their most attentive, since it is widely believed that students are most diligent in their first year of law school. And because the Legislation course is so useful in better understanding higher-level courses, putting it in first year enables it to serve as a foundational course. Indeed, large numbers of students are likely to take upper-division Constitutional Law, Administrative Law, Law & Politics, and other statute-based substantive law classes; they could use the foundation as early as possible in their educational careers.

Another major benefit of taking the course early in one’s educational career is its unique ability to instill respect for methodological pluralism about law. Quite simply, legislatures and agencies ‘think’ differently about lawmaking and law-application than courts do — and they can operate quite differently too. Virtues that are celebrated in the common law — like predictability and clarity — do not always contribute to effective and successful legislative and administrative work; consensus-building, participatory deliberation, and interest group activity need not be dishonourable and are central to legislative and administrative decision-making.

Finally, to the extent that Legislation courses expose students to regulatory practice, state and local government organisation, and agency rule-making and adjudicative processes, students can get a feel for both our general governmental structure as well as the sheer diversity of legal regimes that often escape notice in the first-year curriculum. By engaging deep questions about comparative institutional competence as the Legislation course requires, students can get a lot more out of their other substantive first-year requirements, where questions about comparative institutional competence always lurk but are rarely addressed with any sophistication.

Although I fully agree with those who complained with the current first-year curriculum was insufficiently preparing students for reading and analysing statutes, I also tended to agree with the faculty members who insisted that there was plenty of statutory exposure in the first year, as it stood. Indeed, in my Contracts course I tried to cover some basics about legislation and regulation through my course materials. And at least one of my colleagues has an extended module on statutory interpretation in her Criminal Law class. There is certainly a foundation upon which professors can build to accentuate process and interpretation in the standard menu of first-year courses.

But over the last several years, I have had a change of heart. It has become increasingly clear to me that professors who are teaching Criminal Law, Contracts, Torts, Civil Procedure, or Property simply cannot do double duty, especially as those courses have shrunk and are continuing to shrink to make room for other classes, like Constitutional Law, Legal Writing, Moot Court, and other first-year requirements. Administrative law, regulation, and statutory interpretation are all complex and rich areas that cannot be treated matter-of-factly within other courses. It is a bit like expecting all professors in all subjects to teach Professional Responsibility so that we don’t have to devote students’ time to learning professional responsibility in a stand-alone course.

I perfectly well concede that using other substantive courses to cover some of the material in Legislation courses may be a very useful second-best strategy for updating the first-year curriculum in the ‘age of statute’. And, indeed, if schools can’t staff a sufficient number of Legislation sections, it is not a bad idea to try to get some of the coverage through other courses. Nevertheless, it is much more difficult to manage in such a diffuse manner — and it risks diluting the central message that a free-standing course can communicate to students about what their professional lives are actually going to look like. Ultimately, the vast majority of professors tend not to want their teaching units trimmed to make room for a new course, so the ‘embedding process and interpretation into current courses’ may be the political solution for many law schools.

Anyone who has taught these courses knows that they present pedagogical challenges. Even second- and third-year students find these courses especially complicated and disorganised. Indeed, student dissatisfaction with these courses keeps many teachers away: teachers — especially untenured ones who might be somewhat more likely to have chosen these areas as specialties (or more likely to have been recruited to teach these courses because they are the least able to resist the deans) — do not want the hassle of mediocre student evaluations. Because student complaints sometimes drive the agenda for curricular reform in the first place, adding (or retaining) a course about which students complain seems odd.

Sometimes, of course, students don’t know what is best for their educations. Administrative Law and Statutory Interpretation are hard courses — and they can even be boring at times. But that doesn’t mean that they aren’t critical to good lawyering and that they aren’t foundational courses that students might be required to take in their first year.

First, unlike what is typically contained in the rest of the first-year curriculum, the Bar Exam will usually not test the vast majority of content in Legislation courses. This frustrates students and contributes to their general sense that a free-standing course is an indulgence and is unimportant.

Second, much of the basic Legislation course invariably draws upon political theory, political science, and positive political theory — and students without some background in these areas may feel especially disoriented. While students love the spoon-feeding that is possible when instructors give them a list of canons with which to play, they resist the lessons of public choice theory, the legal process school, and high democratic theory because it doesn’t look like law and seems less determinate.

Third, to teach statutory interpretation well, instructors have to push students (and themselves) into substantive areas of law that they know very little about — with great agility and speed.

To be sure, these are all helpful ways to understand student dissatisfaction. But the first source of gripes — rooted in the Bar Exam — does not strike me as worth much discussion. The Bar Exam is itself insufficiently out of touch with what most lawyers do that it makes little sense to cater our first-year curricula to that examination, nearly four years away from its administration. Our law schools should be aspiring for more long-term contributions to the education of the next generation’s lawyers.

But the second and third reasons mentioned in the above for student discontent are real and cannot be ignored. The Legislation course is theoretical and ‘political sciency’, and it does draw on many subjects and disciplines.

In short, many problems can be alleviated through careful syllabus design and some effort to integrate the course with other substantive first-year courses.

Finally, although it seems anecdotally true that students tend to give professors who teach these courses (like those who teach Administrative Law) lower evaluation scores relative to course and professor averages, so does it seem anecdotally true that students have a quite different estimation of the course once they get into the world of practice. From corporate lawyers to public interest lawyers, former students often have to concede, sometimes grudgingly, that the course actually helped them in the practice of law. Too often, curriculum committees listen to the gripes of today’s students, when asking alumni what they actually need and use in practice seems like a sounder method of gauging consumer satisfaction levels and planning for the future.

Every proposal for a new course in the first year presents a trade-off: Contracts, Torts, Civil Procedure, Criminal Law, Property, Constitutional Law, and Legislation can’t all get six units in the first year — and adding something to the curriculum means taking units away from something else. Moreover, the Legislation course can’t be compared only against a fifth or sixth unit of Contracts and/or Torts, which many might agree to be indulgent; it must be weighed against the choice of including International Law, Professional Ethics, Jurisprudence, Law and Economics, Lawyering, Criminal Procedure, or any number of many worthy possibilities. Rethinking the curriculum more broadly might lead to restructuring students’ upper division courses.

Nevertheless, I remain of the view that a Legislation course should be a high priority for all the reasons already discussed: it is foundational for many upper division electives, extremely useful and practical (even with forays into theory that help illuminate the doctrine and its applications), necessary for much of today’s lawyering, and is a perspective unlikely to be well-explored through other basic courses.

With well-designed course materials — and a plethora of them to choose from — instructors can do a better job ensuring the success of the courses.

In fact, the strategy of many of the newer casebooks in the field is to try to mitigate the difficulty of exposing students to too many areas of substantive law by developing materials surrounding only a few statutory and regulatory areas.

But because approaches to the study of legislation can be so varied and because casebooks in this area continue to proliferate, it is worth considering what some versions of the course could look like.

The options I identify below are not necessarily mutually exclusive, nor are they exhaustive. However, it is unlikely that one could adequately teach a course that successfully incorporates all of these components, whether in a three or four-unit format. Still, getting the menu before us at least serves the salutary function of articulating many of the available options in course design.

The Statutory Interpretation Course: This version of the course focuses student attention on the mechanics of statutory interpretation, introducing them to linguistic and substantive canons in varied legal contexts. It usually involves substantial exposure to theoretical debates about intentionalism, textualism, the ‘legal process’ family of theories, and dynamic or purposive statutory interpretation. Ultimately, these theories and their viability simply cannot be understood without some sensitivity to separation of powers concerns; and the course is generally rounded out with some basic details about administrative law and deference to agency interpretations of statutes. In a three-unit format, professors cannot hope to teach much more than this — and a course centred on these main issues is invaluable to students, no matter what substantive area of law they pursue in academic or professional settings. Indeed, this version of the course is among the most portable and most versatile.

The Legislative Process Course: This version or focus to the course attempts to expose students to the various processes that produce statutory law. Professors in these courses often pursue thinking about representational structures and some basic voting regimes; some turn the course into an introductory class in election law (especially when Election Law scholars are the ones offering the course). Commonly, teachers include in their syllabi further study of the legislative drafting process, legislative committee structures, the lobbying process, the rules surrounding lobbying and campaign finance, and the rules structuring legislative deliberation.

No one doubts the importance of this version of the course and many teachers try to draw from some of these materials no matter what version forms the core in a given syllabus. Still, it is much harder to argue that, say, Election Law is foundational in the same way as the Statutory Interpretation course because it is not obviously as portable to disparate concentrations throughout a law school career.

In a 14-week semester, I’d suggest that about four weeks should be devoted to some process materials. Without a piece of this version of the course, there is a risk that students will only depart with a sense of how courts treat statutes.

So what process material would work best when combined with a largely Statutory Interpretation-focused course? Certainly, students need a sophisticated picture of how bills become laws, one that gives them a juicy empirical sense of how things ‘really’ work and a juicy theoretical overview of legislative process (including some exposure to pluralism, public choice theory, liberalism, republicanism, and institutionalism).

The Administrative Law Primer: Some professors teaching courses that fall under the general ‘Legislation’ label use the opportunity to spend most of their students’ time exploring the architecture of the administrative state, the mechanics of administrative procedures, agency implementation of legislative directives, legislative oversight over agencies, and judicial review of agency decision-making.

This version of the course is undoubtedly important — even in states whose bar exams do not test Administrative Law, since most lawyers engaged in practice that intersects with federal law will need competence in Administrative Law. And although learning about federal regulations and their enforcement is surely an important corrective to excessive fixation on common law courts, it would be a substantial missed opportunity to fail to teach about the legislation and institutional structure (and thinking) that creates the agencies in the first place. So although some basic administrative law should clearly be a component of well-designed Legislation courses (say, some basic introduction to administrative processes and Chevron and its progeny), it shouldn’t displace the entire curriculum, as it can easily do.

An additional difficulty of this version of the course — though this is more a degree issue than a type issue because all versions of the course suffer this problem to some extent — is that the underlying substantive law shifts around so much that students invariably tend to feel that they are skipping around from topic to topic.

The Basic Regulation Course: This version of the course focuses on policy design, cost-benefit analysis, and the competency of agencies to solve social problems of a certain scale. Risk regulation takes centre stage and instructors cover accounts of how parties bargain, evaluate, and communicate risk. Given the substantial interest in gun, tobacco, environmental, and public health regulations, courses might pursue recent approaches to and proposals for comprehensive regulation in those areas.

Yet, the vast majority of schools outside the top tier will not generally have the same caliber of student as attend the top schools — and the curricular design for the Legislation course needs to remain sensitive to the needs and capabilities of the students in the class. In short, even if the top schools head in this direction, it would be far sounder for lower-tier schools not to emulate them on this dimension.

The Substantive Law Course with a Statutory Core: One approach taken by some schools (including, for now, my own) is to attempt to impart some of the content from the aforementioned versions of the course by way of a ‘statutory course’ with a clear substantive focus. Through teaching students, say, employment discrimination, environmental law, food and drug law, immigration law, or other domains controlled largely by statute and regulation, instructors can introduce students to elements of the legislative process, statutory interpretation, administrative law, and regulation. One of the purported benefits of using substantive courses of this nature is that schools can offer students a choice, even if the pedagogical goals across the substantive courses are supposed to be harmonised. And doing it this way tends to alleviate many of the staffing-related problems, since deans can usually round up enough faculty to teach these types of courses by experts in their respective fields.

Although, of course, this strategy of ‘double-coverage’ can be done successfully, it does present unique challenges to students, who want structure and substance wherever they can find it, especially in their first year. Since few who teach these substantive courses care as much about the legislative and administrative law core as they do about their substance — and because exams and coursework will largely focus students on the substantive law ‘vehicle’ — I tend to think this is a much harder method of imparting the relevant skills and foundation that the courses generally seek to achieve.

Obviously, there is no perfect way to design the course, even if, as I’ve argued, one type or focus is more promising and useful in the first year than its alternatives.

Ultimately, design challenges vary depending on the consumers: first-year students will need to be taught in one way and upper-division students another; aspiring academics can perhaps be taught differently than aspiring firm lawyers; students who have taken Constitutional Law will be differently situated than students who haven’t already been exposed to separation of powers and federalism. And design variations also arise because of the providers of these courses: professors with varied interests come to the course with their own research agendas and teaching strengths — and they reshape their versions of the course accordingly.

That said, assuming Legislation does become a required first-year class at a critical mass of schools, some effort must be made to maintain some consistency across sections in the first year, where students are most sensitive to what their colleagues with other professors are learning. Accordingly, when a law school makes a commitment to add a Legislation course to the first year, the school must do more than simply change their bulletins: they should do the harder work of coming to some agreement about which version of or focus to the course they wish for professors to teach.

It is all well and good to conclude modestly (as I think we must) that curriculum committees across the country should consider following Harvard’s unanimous decision to add a Legislation course to the first year. But there is a lot more thinking to do about the shape that the ideal course should take, how much consistency there should be between sections, and what minima should suffice, given staffing limitations at any particular school. This article is an attempt to start that thinking.