Curricular revision at Harvard Law School

Mark Tushnet

Jack asked me to blog about the new Harvard curriculum, and I’m happy to do so. My perspective is that of a new member of the Harvard faculty, and therefore someone unfamiliar with what alternatives were considered, modified, rejected, and so on, and that of someone who has participated in and observed curricular revision at other law schools.

I’ll discuss each of the three main components of the revision (and not say anything about the reduction of credits for “old” courses to make room for the new ones, or about the proposed coordination of the legal research and writing program with substantive courses): the course on “Problems and Theories,” the one on legislation, administration, and regulation (which I’ll call the Regulatory State course, for reasons that will appear), and the ones on international and comparative law.

The first observation, which many have made, is that none of the components is particularly innovative, in the sense that many law schools have added something like one of them to their curricula. If there’s anything distinctive about the Harvard revision, is that it does all three, and for the entire first year class rather than for one section (as at Georgetown), or as electives (as is true of the Regulatory State course in various incarnations). One can anticipate some transitional problems arising from the mandatory nature of the new courses.

The “Problems and Theories” course is, at present, the least well defined. I was reminded of a Sesame Street book I read to my children many years ago, titled something like “Grover Goes to the Museum.” Grover goes through one room, of blue things, another of tall things, and so on, until he reaches the last door, which opens on to the “Everything in the Whole Wide World” room. The “Problems and Theories” course is like that room – for now. The idea of using a problem approach in the first year is a good one, and widely viewed as such, and so is the idea of having some sort of course that serves as an overview of legal theory. I think it will take some careful planning to get this course into a shape that will be pedagogically effective – planning that ought to occur through released time for more than a handful of instructors before the course kicks in, and through regular reflection and revision in its first years. My guess would be that the course is not likely to be pedagogically successful for the first couple of years, a sort of shakedown period, and that after that it could work reasonably well.

The proposal for international and comparative law is pretty straight-forward, requiring students to take one of three courses with a focus on non-U.S. law. Again, the idea of exposing students to such material is now widespread, and the only interesting issue is whether the method should be, as the jargon goes, through the pervasive method, in which the material is introduced in every course, or through semi-specialized courses. Harvard’s chosen the latter, as, I believe, have most institutions who have dealt with the question – largely, I think, at most institutions for reasons associated with staffing and course coverage (instructors may not be comfortable with incorporating the non-U.S. materials in their courses, and may not know what to give up in terms of coverage to do so).

I have a particular interest in the Regulatory State course, having developed and taught such a course for a decade or so, and having just published (literally – the book reached the warehouse last week) a coursebook for use in the course (the description is available here ). As the website address indicates, one question about the course is the extent to which it is conceptualized as an introduction to administrative law or, alternatively, as the book’s title indicates, to the Regulatory and Administrative State. My sense is that the initial offerings at Harvard are going to incline toward the former, about which I’m skeptical. It’s one thing to teach administrative to second- and third-year students, another to first-year students who elect to take it in their second semester, and yet another to teach it as a required course to first semester students. The pedagogic challenges of teaching administrative law generally are well-known, and even if successfully overcome in an upper division or elective first-year course, may be more difficult in a mandatory first semester one, where the students will not have acquired some of the skills of close reading that those who teach in the second semester and after take for granted. My judgment has been that, pedagogically, it makes sense to incorporate more on the regulatory state than is typical in a basic administrative law course, and I’d guess that over the first years of implementing the Harvard curriculum there will be movement in that direction, even if not quite as far as Lisa Heinzerling and I have gone in our coursebook.

I doubt that anyone thinks that this curricular revision is equivalent to the adoption of the case method by Christopher Langdell, and one might see its limitations as a missed opportunity (sometimes I think that). But, achieving substantial curricular revision is a difficult task in any reasonably well-functioning law school, and the Harvard revision is promising enough to deserve some attention.
Posted 3:52 PM by Mark Tushnet [link]