LW 103 : LEGAL METHOD ------- BY. MWL. JAPHET MASATU

LEGAL METHODS:
UNDERSTANDING AND USING CASES AND STATUTES (2nd Ed.)

      How should students begin their legal education? Professor Peter Strauss's innovative materials build on a Columbia Law School commitment reaching back to Karl Llewellyn's Bramble Bush -- that legal education should start with orientation to the materials lawyers use and the institutions they deal with. Professor Strauss focuses on the skills beginning law students need for using cases, statutes, and secondary materials in their education. He does so by following the development across time of American legal doctrines about product liability and workplace injury, caselaw and statutory, and of the institutions that created those doctrines, judicial and legislative. Along the way, students encounter not only the appellate opinions typical of law school teaching materials, but also lawyers' arguments and briefs, considerable stretches of legislative history materials, and a good deal of secondary literature -- largely, excerpts bearing on the continuing controversies over statutory interpretation.

      Cases are relatively few, and lightly edited, as they should be in beginning materials. They are presented in historical order, in an arrangement suggested by Llewellyn's work and by Grant Gilmore's short "Ages of American Law," with interspersed textual materials and notes intended to focus student attention on the skills of case reading and case synthesis. For the first few, excerpts from the reports of counsels' arguments are included; teachers using these materials will easily be able to convey how lawyers' arguments, as well as judicial analyses, shape opinions. Students experiencing the development of product liability doctrine from early Nineteenth Century to early Twenty-first will discover for themselves the engines and the malleability of the common law, the differences between great judges and poor ones, the necessary connections between developing society and social institutions, and developing law. Care has been taken to see to it that the great judges predominate, although not always their greatest work.

      Statutes, present from the beginning, emerge as one works through the materials as an increasingly important source of law -- today, the dominant source of law -- and with them come the disputes over interpretation. Over half the book is concerned with questions of statutory development and interpretation and, to a limited extent, the emergence as well of administrative agencies responsible for the implementation of statutory regimes. Professor Strauss insists, as few such materials do, that students encounter statutory problems through lawyers' eyes, not judges'. Thus, the first extensive set of statutory materials concerns the Federal Railroad Safety Appliances Act of 1893, a two-page, eight-section statute mandating the use (inter alia) of automatic couplers on "cars." Students are asked first to identify interpretive problems in relation to three problems lawyers would have encountered before any court saw the statute -- two of them involving considerable client investment. Next, they are asked to read edited materials from the legislative history, and excerpts from ICC reports about the statute and its implementation during the period between enactment and effective date. These are, of course, materials the General Counsel of the Southern Pacific would have had available to him and been interested to know about, long before the statute got to court. Only then do students encounter judicial opinions.

      Subsequent materials bearing on statutory interpretation explore the move from formalism to realism and back again, with careful attention to the changing character of Congress over the years. Both the New Deal changes and contemporary debates are thoroughly explored, through caselaw and secondary literature. Again, Congress and lawyers' work with its output are put into the foreground. Here the focal problem concerns the possibility of reimbursing litigating expenses for parents who successfully sue to force special educational arrangements for their children. The materials begin with a statutory problem, next illuminated by excerpts from Supreme Court briefs. The Court's decision follows, as does Congress's prompt and emphatic repudiation of that decision -- legislative materials whose changed character from those of the RSA will be evident and provocative for discussion, and which leave open the problem your students are asked to resolve. A subsequent series of decisions by the Court answer questions no Member of Congress may have known to ask; do they now control the problem put? Divided decisions of the Eighth Circuit Court of Appeals (2003) and of the Supreme Court (2006) explore the debates, on the merits and on statutory technique. The materials conclude with excerpts from the secondary literature debates; brief further attention to the problem of agency statutory interpretation (Chevron and its sequelae); interpretive problems drawing on three very recent Supreme Court decisions revealing the fracture lines over interpretive issues; and a thoughtful essay on the problems of contemporary judging by the Hon. Gerard Lynch, long Prof. Strauss's colleague and now a judge of the US District Court for the Southern District of New York.