Upperclass students and LLM candidates may take these courses only if space permits.
L6200 THE ART OF LEGAL PERSUASION (3 pts)
R. Ferguson
How do you convince someone of your position in a situation of conflict? Lawyers face this question all of the time, and answers depend on a detailed awareness of the priorities assigned to variables in play according to circumstance. We will explore those variables - context, agenda, goal, authority, role, genre, influence, professionalism, collegiality, and idiosyncrasy - in a variety of legal situations.
There are many ways to be a lawyer. One aim of the course will be to display the alternatives. Another and related purpose will be to expose you to the full range of rhetorical tools available to you in the practice of law. Still a third goal will be to prepare you for the choice of courses you will face in the second and third year. Readings will include opening and closing statements in court, negotiating a deal, participating in a merger, advising a client, reaching a settlement, making a will, mediating a dispute, handling a divorce, responding to domestic abuse, arguing a level of punishment, creating a custody arrangement, and not least, conducting yourself appropriately and effectively within the cultural dynamic of firm life.
L6178 CRITICAL LEGAL THOUGHT (3 pts)
K. Franke
Oliver Wendell Holmes wrote in 1871 that "torts is not a proper subject for a law book." One would be hard pressed to show that any of the courses in the first year foundational curriculum contain a coherent body of doctrine that can be logically deduced from fundamental principles, instead their content is best defined by reference to the boundaries of adjacent areas of law. Is nuisance a problem of torts or of property? What frame of analysis - torts or contract - should be brought to bear on the tortious interference with contract? The concepts "public law" and "private law," as well the notions of "canon," "field" and "foundational curriculum," all rest on a set of unstated premises for their integrity. Certain legal concepts, forms of reasoning, and values are privileged, while others are marginalized and devalued, if not ignored. Critical Legal Thought will retrace and re-examine the courses that make up the foundational curriculum with a critical eye toward uncovering their hidden assumptions, unstated premises, and leaps of faith that give much of the law we teach and learn a "taken for grantedness". This course will introduce second-semester, first-year law students to a range of critical approaches to law with the goal of giving them tools for testing legal arguments, assertions of legal pedigree, and the underlying normative premises that often make legal outcomes seem both just and inevitable. The first weeks of the semester will examine the underlying structure of "regular law," including the work done by legal positivists, and formalists. From there we will cover critical approaches to the assertion of law???s objectivity and rationality. Beginning with Legal Realism and it???s progeny Critical Legal Studies, readings will cover Feminist and Critical Race critiques of law???s aspiration to objectivity and neutrality. We will then move to examine the foundational curriculum - Torts, Contracts, Criminal Law, Property, and Civil Procedure. Students will be evaluated on two papers as well as class participation. For more information, go to: http://www2.law.columbia.edu/faculty_franke/CLT/index.html
L6178 INTRODUCTION TO INTELLECTUAL PROPERTY (3 pts)
S. Hemphill
This class is designed to provide an introduction to the subject of intellectual property. No attempt will be made to offer a survey of the law in any particular area such as copyright, patent, or trademark. Instead, the class will focus on a series of discrete topics in intellectual property that raise conceptual issues about the nature of intellectual property rights and the rationale for having such rights. One issue of pervasive concern will be how our notions about ordinary property rights change when applied to intellectual property.
Topics may include: definitions of intellectual property; contemporary theoretical justifications for intellectual property rights; the source of intellectual property rights; the evolution of intellectual property rights; comparison of the various forms of intellectual property; the internal structure of individual forms; the optimal strength and duration of such rights; the boundaries of intellectual property with contract, social norms, and self-help; and remedies.
L6177 LAW AND CONTEMPORARY SOCIETY (3 pts)
E. Moglen
This is a course about American law thought in the 20th and 21st centuries. The goal is to understand how creative lawyers
think about society: how they study, conceive, and interact with social processes. The course considers insights from psychology, sociology, anthropology, and other social sciences that have affected lawyers in our culture, and asks how those approaches can be put to work in learning the law itself. By constructing richer and more complex social theory around the usual subjects of law school inquiry (consumer contracts, crimes, property) this course offers first-year students new ways to think about theproblems encountered in other courses, and new ways to think about career choices in the law.
L6171 LAWYERING ACROSS MULTIPLE LEGAL ORDERS (3 pts)
G. Bermann, K. Pistor
The first year of law school generally introduces students to basic principles of US law, including state and federal law. But in today's world, most lawyers practice law in multiple legal orders, including (in addition to domestic law) foreign law, regional law, and international law of multiple sources. In addition, comparative law is a powerful lens through which to appreciate and evaluate domestic law.
This course thus has both distinct objectives and a distinctive methodology.
The course's fundamental objective is to better prepare students for contemporary legal practice by introducing them to the basic issues and principles of international law (both public and private) and by equipping them with a keen comparative law perspective. In so doing, the course will explore both the special promise and the special challenges that these fields of law present.
The course is also distinct in methodology. It takes as its springboard a series of cases that have rich international or comparative law dimensions, but are also consciously modeled on concrete cases that students either encountered during the first semester (in contracts, torts, civil procedure, and legal methods), or are encountering concurrently in other second semester courses (in criminal law, property, and constitutional law), or are likely to encounter later in certain upperclass courses (such as regulatory law and criminal procedure).
The course will explore how these "internationalized" or "comparatavized" cases would be approached, not only in the US and/or under US law, but also in other jurisdictions around the world and/or under other bodies of law. We will endeavor to arrive at possible explanations for the differences observed -- explanations that may lie in legal rules, the operation of judicial and other institutions, or the political economy of other countries. Included will be cases that arguably fall within the domain of, and thus interface with, regional (e.g. NAFTA) or international (e.g. WTO) legal regimes.
In short, the course aims to complement the basic domestic law orientation of the first year curriculum with distinctly international and comparative law knowledge and perspectives.
L6174 REGULATION: DECENTRALIZATION & GLOBALIZATION (3 pts)
C. Sabel, W. Simon
Many regulatory systems are being reconfigured under the pressure of increasingly rapid technological and economic change and increasing internationalization of the activities they regulate. This course surveys
current issues in administrative, constitutional and international law regarding regulation, with special emphasis on efforts to decentralize administrative control and to coordinate among multiple jurisdictions. The
themes will be exemplified by reference to three primary areas of regulation: environment, labor standards, and school reform. Regulatory innovation includes programs to induce market-type incentives to produce public goods or to eliminate public bads (for example emissions trading, including the recent regional greenhouse gas initiative in the US), and to induce accountability and learning through the application of business management techniques to regulation. While the earlier part of the course will focus upon the United States, the latter part will consider also the global context, looking for example at regulatory innovation and coordination in the European Union, and in the WTO.
L6174 THE REGULATORY AND ADMINISTRATIVE STATE (3 pts)
P. Strauss
Using a recently published book that persuaded Harvard to require a course on the regulatory state, as Columbia did a decade and a half ago, this course takes the problem of risk to human life and health, and explores the potential justifications for, and contours of, legal responses to it. You have already begun this exploration in Torts and, perhaps, Legal Methods. We will follow the book's organization and concerns, which are as follows:
I. Justifying Regulation When Parties Contract
Legal Responses to the problem of allocating risk
An economic perspective -- the advantages and disadvantages of private markets
Alternative perspectives -- market inalienability and the reality of unequal bargaining power
II. Doctrinal and Institutional Limits of the Common Law
Doctrinal limits (criminal law and torts; the strengths and weaknesses of courts as decisionmakers and court-made doctrine as the source of law)
Institutional strengths and limits -- adding administrative agencies to the mix of institutions, statutes as a source of law, and sociological and historical inquiry as elements of social science perspective
Linking common law and statutes -- workers' compensation as a case study of administrative efforts to regulate risk
III. The Modern Regulatory State
Statutory interpretation by courts and agencies
From statutes to rules -- the development of administrative rulemaking
Assessing regulation and its arguable failures -- cost-benefit analysis as a technique
Information disclosure as a market-based regulatory technique
Setting and monitoring performance standards as regulatory technique
The non-delegation problem (herein of concerns about political accountability, of legislators and administrators)
Political approaches to choices among regulatory institutions -- compounding the disinterested(?) social scientists' views about institutional strengths and limits with social science views about politicians making choices about institutions -- herein of "public choice."
IV. The Regulatory and Administrative State in the Twenty-First Century: New Perspectives
Comparative approaches
Proposals for reform
The book itself runs to 822 pages, roughly 60 pages of reading per week. While much of it involves secondary literature, primary legal materials (cases, statutes, regulations) are also present in substantial measure. Technical skills in economic analysis will permit some to enrich our conversations, but are not demanded by either the materials or the instructor. Limited additional readings. Written exercises will figure substantially in the grade for the course. Class participation will also be a factor.
Enrollment of upperclass and graduate students is subject to three constraints: absolute first-year priority, an overall class size limit of 60; and, should fewer than 40 first year students elect the course, a limit on upperclass enrollment to 1/3 of total enrollment.
Other Recent Courses
The following are not offered in 2008-2008 but are part of the regular course offerings ta Columbia Law School.
L6112 LAW AND ECONOMICS (3 pts)
(see Law and Economics)
L6175 LEGISLATION (3 pts)
Legislation is a course about today's most important source of law, statutes rather than the work of courts. We will study Congress and its functioning, both descriptively and through the eyes of social science theory. We will seek to understand how statutes are created -- with attention to drafting issues as well as to legislative functioning and the ways in which lawyers (for example, as lobbyists) may participate in it. In working with legislative outputs, we will tend to stress the ways in which lawyers most frequently encounter statutory problems -- before, rather than after, judges have had an opportunity to consider them. Of course this will lead us to study how courts, as well, will engage in interpretation. These changing and contentious approaches set the framework within which lawyers must advise clients how to spend the considerable resources that may have to be committed, or make the other risky commitments, years before a court will find any need to speak to the issue. But our emphases, building on the statutory elements of Legal Methods, will be on acquiring the skills of sound advising as well as litigating, on legislatures as much as courts.
A likely element of the course will be creation of a class bibliography of the expanding literature about the issues of interpretation, with each class member providing a precis and critique of a different article, then subject to response by another member of the class.
The basic materials of this course will be Eskridge, Frickey & Garrett, Cases and Materials on Legislation -- Statutes and the Creation of Public Policy, one of the more interesting and well-conceived sets of law school teaching materials currently available. The same authors have written a book in the Foundation Press Concepts and Insights series, "Legislation and Statutory Interpretation" that captures their approaches in prose, and that will prove particularly useful in addressing social science understandings of legislative processes.
L6176 THE RULE OF LAW: PERSPECTIVES AND PHILOSOPHY (3 pts)
This course approaches legal thought through the lens of "The Rule of Law." The Rule of Law is one of four ideals that make up the constellation of modern political morality; the others are democracy, human rights and free market economy. In this course, we will examine the ideal of the Rule of Law -- its origins, its implications and its critics. The course is divided into four parts: (A) some history of the aspiration to have a society ruled by laws, not men; (B) particular themes that are connected with the Rule of Law, such as freedom, dignity, efficiency, sovereignty and constitutionalism; (C) modern critiques of the Rule of Law; and (D) the Rule of Law as understood in the main schools of modern jurisprudence (Formalism, Legal Realism, Legal Process School, Positivism, Pragmatism and Critical Legal Studies).
L6182 TERROR AND CONSENT (3 pts)
The world didn't change on September 11, 2001; it had already changed in 1990 and 9/11 was the result. The Wars against Terror are the successor conflict to the Long War of the 20th century and they will drive changes to the constitutional order that the end of teh Long War brought about. The Wars on Terror embrace the three distinct but related struggles to prevent market state terrorism, protect against gross diminution of humane conditions and preempt the proliferation of weapons of mass destruction. The outcome of these wars will determine whether the new, emerging constitutional order of the market state will be composed of states of consent or states of terror.
