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February 6, 2009

Statutory Interpretation, Curricular Reform, and Other Ramblings

One of the big things in academia right now is reforming legal curriculum. No doubt it needs it. But, what has happened is that a bunch of buzz words are being thrown out, and some tweaks here and there made, but, with few exceptions (Washington & Lee being a prime one), little major is being changed.

We're in the midst of this at Mercer. I've taught for 6 years now, after practicing for 14 full-time and 6 now here and there. For what it's worth (and there WILL be something about statlaw, so hold on), here's my thoughts:

First, there's a dire need of subject matter reform. Why on earth do we teach fee tail, for example, in many property courses? I ran a westlaw search, and the phrase has been used in 35 cases -- in the entire US -- since 1995, and almost all of them noted that fee tails had been abolished by statute. Why is contract formation so emphasized? Why is writing mostly about appellate briefs (I wrote maybe 20 appellate briefs in my career, and probably 300 trial oriented briefs, and I did a "lot" of appellate work.) Why is most time spent reading appellate, rather than trial court, decisions?

You get the drift.

Then there's statutes. Because of the focus on the old cases, there's a unrealistic de-emphasis of statutes. They matter far more than first year case books would suggest. Tort reform, reform of future interests, the UCC -- these all are less present in most casebooks than they are in most practices, I'd suggest.

Now, the tail of casebooks can't wag the dog of law school professors. They love teaching this old stuff because it's wonderfully familiar. "My gosh," they can say, "what if the 80 year old woman gets impregnated by the five year old. That would violate the rule against perpetuities!" It's easy, known, and "we did it so why shouldn't they." (It's also, to a degree, still on the bar, and that is another problem - the bar tests students for a world that does not exist, but that important point I'll leave for now.)

So, more statutes more often is one "reform" I'd vote for.

Related to that, a class that brought together the different skill sets that common law reasoning requires than statutory law. It can't be in the first year, though -- too much too soon - but something to give the students the forest from the trees..

Anyhow, back to your regular programming soon...

February 6, 2009 | Permalink


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nice post, thanks for sharing!

Posted by: Entreprenørfirma | Feb 8, 2009 9:30:14 PM

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