Behind the Doctrinal Curtain: Law School's Concepts and Themes

When you have finished law school, you will (hopefully) have mastered a good deal of legal doctrine (many of you will review and/or sharpen your mastery of particular rules when you study for the Bar) and mastered a number of skills you will need to fulfill professional roles. (Hopefully, you will learn particular advocacy skills if you will be an advocate; writing skills that will help you whether you draft contracts or legislation, briefs or executive summaries, client letters; and, particularly in the Experiential Learning courses, skills that will help you exercise prudent judgment, collaborate with others, work both efficaciously and empathetically in a diverse world.). The claim that underlies this course is that your "classroom" courses here at SLS -- and at pretty much any of the academically ambitious schools that most of you considered attending -- had both a text (the doctrines and policies in the particular subject area that you were studying) and a "sub-text" (the concepts and themes that recurred across a wide range, maybe all, of your courses.) The goal of this course is to highlight these recurring themes (and remind you or illuminate for you just how often you confronted or will confront these issues), to discuss more overtly and directly the distinct approaches to each of these recurring issues than you might have discussed them before, and to expose you to some ways of approaching these issues that might be less familiar to you. In discussing these issues, we will draw on the insights offered by a wide array of "schools" of legal thought, including, but not limited to, libertarianism, Law and Economics, Legal Realism, Critical Legal Studies, Critical Race Theory, a variety of Feminist Legal Theories (anti-subordination feminism, "cultural" feminism), Langdellian Formalism and neo-Formalism, Law and Society. So, for instance, we will discuss some or all of the following issues: 1. Ways in which legal pronouncements are framed (the tension between the use of rules and standards; between default and mandatory rules); 2. Remedial options and remedial mechanisms (the choice between inalienable entitlements, injunctions, damages, restitution, and distinct forms of punishment; between sliding remedial scales and binary outcome-determinative rules; conduct regulation and output/outcome goals; public enforcement v. mixed public/private enforcement v. private enforcement with differing degrees of collectivization of individual complaints); 3. Issues in the interpretation of both private and public legal texts (textualism, intent-based originalism, flexible purposivism) and distinct theories of why or in what ways texts may be either incomplete or "dated," with some special attention to how to interpret texts that appear to delegate authority (to another decision maker, to a future decision maker) to make narrow, concrete decisions; 4. The interplay between substance and procedure (and its relationship to creating a gap between the law on the books and the law in action; the degree to which substantive rules are framed in the way that they are because rule makers are anticipating procedural barriers to enforcing alternative rules); 5. Institutional competence issues; 6. Alternative visions of human behavior and motivation (individualistic rational choice models with "thin," generally materialistic goals v. thicker rational choice models v. individualistic models influenced by psychologists, advancing richer views of how people process information and form tastes and/or sociological models, focused more on group influence, group maintenance and group conflict); 7. Some recurring substantive issues (how we define operative assent and how we define normatively meaningful consent; how we deal with problems of incommensurable values or deny the possibility of incommensurability; when we do or don't believe people are adequately empowered by "exit" -- finding another provider in a market or subjecting ourselves to a different political body that will make the rules that govern us -- and when we believe power must be exercised politically/collectively; when we believe principal/agent problems are serious and how we think they are "solved"; battles between anti-classification and anti-subordination views of antidiscrimination norms) and 8. The origins of law and the impact of law (is law significantly autonomous or responsive to other social forces (where "social forces" might or might not be understood in significant part in terms of distinctions in power by race, class, gender, LGBTQ status etc.) and to the ideological predispositions of those who articulate it? Is law -- and most particularly the judge-made law we (over?) emphasize in law school -- effectual in achieving social change?) Special Instructions: This class is limited to 30 students. 3Ls/Advanced Degree students will receive first preference, followed by 2Ls and then 1Ls. Elements used in grading: Grades will be based on reaction papers and class participation; there may be formal class presentations as well (depending on class size) that would also figure into grading.