Integrating Theory in Large Upper-level Classes
The Law Teacher, Volume 8, number 1 (Fall 2000), p. 1-2.
About the Author
Curtis Nyquist teaches at New England School of Law, 154 Stuart St., Boston, MA 02116, (617) 422-7255; fax (617) 422-7453; cnyquist [at] fac.nesl.edu
It is comparatively easy to integrate theory in first-year courses and upper-level seminars. With first-year students, if you stress the importance of theory early and often they write it down and believe it. Course descriptions of upper-level seminars attract students with a bent toward theory. In my Perspectives: Readings in Contract Law seminar, students uncomplainingly spend the entire semester reading theoretical articles and books. The challenge is incorporating theory in one-semester, upper-level, high-enrollment courses. I teach three such courses (Secured Transactions, Negotiable Instruments, and Consumer Protection). The fact that these subjects are typically tested on the bar only widens the gap between what the students think the course should be about and what I think. After several years of trial and error, I have settled on a method of integrating theory in these courses that seems to work well.
First, I choose one or more law review articles that are of general theoretical interest and can also be directly connected to the subject matter of the course. I rotate several articles through the courses (contact me for a list), and a student taking all three courses would read four or five different articles. For the purposes of this essay I will use Duncan Kennedy's Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) (hereinafter F&S) as an example.
My approach has three phases, and every class meeting has some theoretical component. The article is read and discussed during one of the middle weeks of the semester. The approach, then, divides the course into the first section, a middle week, and the final section.
In the very first meeting of the course as part of the general introduction, I emphasize the importance of theory, introduce the article to be read, explain how theory will be incorporated in the course, and promise that theory will be tested on the final exam. In every subsequent meeting during the first phase I devote a few minutes of class time to a lecture about the article followed by time for questions. I label these mini-lectures "Five Minutes for Theory" and link the mini-lecture to a case, problem, or statutory provision assigned for that day. For example, F&S distinguishes "rules" which are bright-line statements of law that appear to give the court little discretion (e.g., for the purposes of contract liability the age of majority is 18) and "standards" which are open-ended statements of some goal or policy that give the court wide discretion (e.g., the obligation of good faith in § 1-203 of the Uniform Commercial Code). In Secured Transactions, the rules/standards mini-lecture could be linked to the U.C.C. provisions for the effectiveness of a financing statement. Subsection 9-402(1) establishes a list of rule-based requirements (names of the parties, addresses, description of the collateral, etc.) while 9-402(8) creates a standards exception (a financing statement "substantially complying" with the requirements is effective as long as the error is "minor" and "not seriously misleading"). It might take a few class meetings and several more illustrations before the distinction sinks in, but once it does, rules and standards become part of the vocabulary of the course.
I discuss in turn each of the major themes of the article. In F&S there are seven major themes: rules/standards (1687-89); legal argument based on the rules/standards dichotomy (1720-13); individualism/altruism as contradictory ways of organizing society (1713-22); individualistic/altruistic substantive legal arguments (1710-13, 1722-24, 1737-40); general/particular (1689-90); formalities/deterrence (1690-94); and the history of conflict between individualism and altruism in American law (1725-37). In each mini-lecture I am careful to illustrate the theme with one or more examples from a problem, case, or statute.
Although the full article is not read until the middle week, I distribute it in the first class meeting, and the Phase One syllabus assigns those sections of the article covered in the mini-lectures. The goals of the first phase are to introduce the major themes of the article, relate the themes to each other, prepare the class to read the article in full (many law students have forgotten that they know how to read theory), and connect the themes to the subject matter of the course.
During the middle week the students read and discuss the article in full. The major goals here are to ensure that they are able to relate the themes to each other and connect them to the substance of the course. For example, a case in Secured Transactions In re Keefer, 26 B.R. 597 (Bankr. D. Idaho 1983) illustrates the connection between rules/standards legal arguments and individualistic/altruistic legal arguments. In the case a secured party filed a financing statement that did not give the debtor's address. When the debtor filed for bankruptcy, the trustee challenged the filing for failing to comply with the requirements of 9-402(1). The secured party argued that under 9-402(8) it had substantially complied. The court rejected this "liberal construction" argument and held the financing statement ineffective. It scolded the secured party in language that illustrates how a lawyer arguing for a rules result will make individualistic substantive arguments (and, conversely, her opponent will make standards/altruistic arguments): "[T]he requirements . . . are not onerous"; "Here, there was not a failed attempt . . . but rather no attempt"; and "The petitioner's difficulties at this time stem from their own failures."
During this middle week (and during the third phase) I try to keep the discussion moving from a theoretical level to the nuts and bolts of the course, and then back to theory. In a discussion of In re Keefer, for example, I might ask why a lawyer urging the court to choose the rules alternative would be making individualistic arguments. I would then move to a close examination of the text of the case to find illustrations of the rules/individualism connection. Finally, I would return to a theoretical discussion. This persistent sliding back and forth between theory and application reinforces the connections between the article and the substance of the course. (Incidentally, F&S is a wonderful tool for skills training in statutory argument, particularly when combined with Karl Llewellyn's taxonomy of statutory argument Canons on Statutes found in THE COMMON LAW TRADITION: DECIDING APPEALS 521-35 .)
In addition, during this week I broaden the discussion by including issues from other parts of the curriculum that reverberate with the themes of the article. For example, the issue in Charles Thomas Dickerson v. United States, 120 S.Ct. 2326 (2000), can be seen as a choice between maintaining the rule of Miranda v. Arizona, 384 U.S. 436 (1966), or adopting the standard of the federal voluntariness statute, 18 U.S.C. § 3501 (1994). In Conflict of Laws, Restatement (Second) summarizes the change in judicial philosophy from the era of Restatement (First), "[t]he essence of that change has been the jettisoning of a multiplicity of rigid rules in favor of standards of greater flexibility." See Restatement (Second) of Conflict of Laws, vii (1971). The goals here are to multiply examples of the themes and to encourage thinking across the artificial boundaries of the curriculum.
In the final phase I encourage the class to search continually for connections between the theoretical themes and the substance, with the goal of fully integrating the article and the course. When a student raises a connection, whether the comment comes from a practical or a theoretical perspective, I affirm and discuss the point and then move the discussion to the opposite perspective. My hope is that by the end of the course the class will demonstrate equal facility at either end of the theory/application spectrum.
I also encourage the class to probe other courses for illustrations of the themes of the article. A student in Secured Transactions, for example, saw a relationship between the proposed new Article 9 choice of law rule for nonpossessory security interests and Llewellyn's approach to title in Article 2 (sale of goods). The proposed Article 9 rule is more "general" than current law because it replaces three rules with two. Llewellyn's approach was exactly the opposite. He took the pre-U.C.C. idea of title, which he called a "lump concept," and broke it into specific issues. The ensuing discussion both helped the class understand the general/particular concept and gave me an opportunity to elaborate on Llewellyn's role in the history of American legal thought.
In the final phase I also review the major themes of the article and gather up students who may have strayed along the way. I have, on occasion, offered an extra review session focused primarily on theory. Finally, I emphasize that good lawyering in any field of law demands that practitioners stay current and that following both the practical and the theoretical literature is essential.
Incorporating a theoretical perspective in these courses presents an intriguing challenge for faculty. My method allows theory to be first introduced and studied separately and then folded into the course. Enlisting student energy in searching for connections enlivens the classroom and, when combined with rotation of the theoretical articles, helps to keep these courses new. Most significantly, however, incorporating theory in these courses communicates to students the important message that theory is everywhere.