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October 26, 2006

Wisdom from whatever source derived

I'm very pleased to take part in Law School Innovation.  For my first post here, I am reprising an item posted earlier this week on MoneyLaw: "Wisdom from whatever source derived".  The conversation has evolved quickly, as James Edward Maule and I subsequently swapped reply posts.

In any event, I think it's worth starting the conversation anew here at Law School Innovation.

Jim Chen    

Wisdom from whatever source derived

In commentary on "Law school diagnosis" and in a post on his own blog, James Edward Maule suggests, only partly in jest, that Harvard Law School's vaunted curricular reform proposal can be duplicated by the simple expedient of teaching a basic course in federal income taxation as a required component of the first year:

Much time and effort could be saved, and the same worthwhile goals accomplished, by moving Introduction to Federal Taxation, as many of us teach it, into the first year. What's in the package? Constitutional law analysis? Yes. Administrative law principles? Yes. Statutory and regulatory analysis? Yes. Application of law to facts? Yes. Problem solving? Yes. Planning to avoid problems? Yes. Discussion of ethical considerations? Yes. Awareness of client needs? Yes. Development of interviewing and counselling techniques? Yes. Attention to international issues? Yes. Incorporation of business, social, economic, and political facets of the topics? Yes.

I will now construe this suggestion as a serious proposal for reforming the first year curriculum.

Jim Maule isn't the first person to suggest the inclusion of a basic income tax course in the mandatory first-year curriculum.  Many, many years ago, back when she and I shared an employer, Karen Burke made the same suggestion to me.  There's much to recommend the idea.  Most students will take basic tax eventually; those who do not almost surely should.  Jim and Karen are right: the course is filled with potential.  It has everything a law school course should have, plus the added bonus of being relevant to the future professional interests of virtually every law school graduate.  As an inveterate generalist, I've always been fascinated by the idea of adding tax to my teaching repertoire.  It covers the full range of business law issues and provides the perfect platform for considering, at the highest manageable levels of abstraction, the very purposes of government.  In teaching law students, we should happily accept wisdom from whatever source derived.

There is only one problem.  Unfortunately, I think it's insurmountable.

First-year students, when asked to extract abstract principles -- legal process, canons of interpretation, some sense of common law versus statutory or regulatory lawmaking, etc. -- in favor of substantive doctrines from a law school course will extract . . . substantive doctrines.  I haven't decided whether the reason for this lies in the nature of American undergraduate education or in some debilitating facet of legal education.  It might be even worse.  The fault, dear Brutus, is not in our schools, but in ourselves, that we are underlings.

For purposes of deciding whether to include income tax -- or admiralty or worker's compensation or insurance or any other substantive subject -- to the first-year curriculum as our students' introduction to legislation and legal process, none of this matters.  What does matter is whether we can use tax or any other substantive subject as a sneaky back door to teaching a rigorous course in legislation, legal process, or "the administrative state."  In my experience, we can't.

October 26, 2006 in Teaching -- curriculum | Permalink


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Buffalo had a required income tax course until 2000 (when I started there). I do not remember if it was a first year course or not.

I think the case for teaching tax in the first year could also be made for intellectual property, environmental law, oil and gas, or FDA law. The problem is that very few people think in terms of method and problem solving anymore. Students seem to care only about what the answer is, and most faculty comply, replacing the difficulties of addressing problems with legal tools with a vague discussion of policy. Do not get me wrong: I am in the camp that views law as a form of policy making. But what this point translates into is usually a form of hyper realism (i.e. law is only power) or a crude policy analysis that uses simple minded economics or other policy method to show how incoherent law is. My personal view is that we need to teach how to apply legal concepts to problems in order to frame and propose solutions. The law, in other words, is constructed, but we need to learn how it is constructed and how to construct it ourselves in whatever legal role we might find ourselves: advocate, judge, legislator, etc. I once mentioned my approach to a colleague down here and the response was that we are not here to teach people to be courtroom attorneys, completely missing the point.

Of course, what I am proposing could be taught through any course, whether the traditional first year canon or some more recent fodder.

Posted by: Shubha Ghosh | Oct 28, 2006 12:15:08 PM

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