Legislation and Regulation in the Core Curriculum: A Virtue or a Necessity?
65 J. Legal Educ.3 (2015-2016)
43 Pages Posted: 16 Apr 2016
Date Written: 2016
The first-year curriculum at American law schools has been remarkably stable for more than 100 years. Many would say ossified. At Harvard, the First-Year Course of Instruction in 1879-80 consisted of Real Property, Contracts, Torts, Criminal Law and Criminal Procedure, and Civil Procedure. These five courses-focused heavily on judge-made common law-dominated Harvard's IL curriculum from the law school's founding into the 21st century. The same five subjects have long commanded the primary attention of first-year students at Fordham, founded in 1905, and at virtually every other U.S. law school throughout the 20th century.
Starting in the 1990s, however, a growing number of schools have required a IL course examining different aspects of statutes and regulations. In previous decades, a handful of law schools offered upper-level elective courses in Legislation, including statutory interpretation, to a mixed reception. Administrative Law has been a more regular elective subject, although enrollments by school reflect an uneven proportion of upper-level students. What is new is the array of law schools deciding that a course in Legislation ("Leg"), or Legislation and Regulation ("Leg-Reg"), should be mandatory for first-year students.
There are at least 27 schools that require a first-year course in Leg-Reg, generally for either three or four credits. An additional group of schools require 1Ls to take Leg, a course that often includes greater focus on topics related to the legislative process but does not encompass regulations or the regulatory process as a major component. Overall, nearly 40 law schools currently require some kind of Leg-Reg or Leg course, almost all of them as part of the first-year curriculum. The number of schools requiring such a course represents a sharp increase within the past decade alone.
This article focuses on the importance for legal education of mandating such a course. Part One addresses three distinct justifications for inserting Leg-Reg into the first year of law school. From a pragmatic standpoint, lawyers since the New Deal have devoted ever-increasing time and energy to understanding, applying, interpreting, litigating, and counseling about statutes and the regulations or agency judgments that flow from those statutes. Legal education must catch up. Immersing first-year law students in a systematic approach to the methodology of statutes and regulations is at least as important to their future legal practice as immersing them in the methodology of the common law.
In addition, an early exposure to what it means to "think like a lawyer" outside the courtroom setting can illuminate and deepen appreciation for our three-branch system of government. Courts are the exclusive arbiters of what the common law means, and federal courts have become the primary arbiters of what the Constitution means as well. For statutes, however, the setting is more complex, reflecting a dynamic conversation among all three branches. By requiring first-year students to engage this conversation, law schools generate a more balanced set of insights about how our laws are made and applied. This, in turn, can help to minimize simplistic dichotomies between principled and political decision-making, and encourage students to recognize legislative virtues like consensus building and democratic responsiveness as comparable to the adversarial legalism of the courtroom.
Finally, statutory and regulatory subjects dominate the upper-level curriculum. Accordingly, it makes sense in foundational terms to require that students approach these subjects with an understanding of how laws and rules are shaped and informed by legislative and regulatory processes. A sophisticated methodological background should enable students to focus in more rigorous and also nuanced ways when they grapple with finer points of securities law, environmental law, or the law of telecommunications or civil rights.
Having taught both a required Leg course and a required Leg-Reg course, I believe there are solid arguments for each option. My current thinking is that Leg-Reg presents the stronger claim, but I will briefly address certain separate strengths of a Leg course as well. Whichever option one may consider, a case can be made that it borders on educational malpractice not to include either Leg-Reg or Leg as a mandatory element of the IL curriculum.
The fact that a Leg-Reg or Leg course should be required does not mean that implementing such a course is straightforward. Part Two discusses some challenges that accompany the development of a mandatory Leg-Reg course. These include deciding what topics should be covered and how to calibrate the emphasis between legislation and regulation; determining how Leg-Reg topics may be harmonized with existing subjects, notably Constitutional Law and Administrative Law but also Legal Writing and upper-level electives in Legislation; and reviewing certain institutional obstacles related to staffing a IL course as well as to persuading colleagues with long-standing, sincere investments in their common law subjects to yield some space for a newcomer.
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