BY ANDREA SAENZ
On Thursday, October 5th, the Harvard Law School faculty held a closed-door meeting, in which they accomplished something no one thought was likely: They unanimously voted to change the first-year required curriculum, which has been largely unchanged since it was created by Dean Christopher Columbus Langdell in the 1870s. New additions will require students to study statutory interpretation, international law, and a new problem solving course, as well as eventually changing the 1L calendar to mirror that of 2Ls and 3Ls.
“Good God, the first-year curriculum was developed 130 years ago, and it really hasn’t changed all that much since,” said Dean Elena Kagan. “So what we asked ourselves in these last few years is: Should it have remained quite that stable? And we decided the answer was no.”
The dean had spoken often of curricular reform and of the ongoing work of an eight-person committee appointed in 2003, but it seemed to many like any other sound bite from a school leader. The sweeping additions to the curriculum came as a surprise to the legal community, garnering coverage over the weekend from the Harvard Crimson, the Boston Globe, the New York Times, and Inside Higher Education. Professor Einer Elhauge called the revisions made by the Law School curricular review “bold” and “innovative,” adding that the changes passing unanimously “is like hell freezing over.” About 70 percent of the faculty voted, Kagan said.
The new curriculum cuts none of the usual first-year courses – civil procedure, contracts, torts, property, and criminal law – but does contract them each into shorter form. On top of those classes, there will be three new courses on each 1L’s transcript.
The first addition is a course on legislation and regulation, designed as an introduction to the legislative process, the administrative state, and statutory interpretation. “There was a widespread feeling in the legal academic community that the traditional curriculum fails to introduce students to the modern regulatory state and fails in the first year to give them an introduction to reading statutes,” said Professor Mark Tushnet. The course is intended to balance out the traditional reading of appellate court decisions on common law issues that predominates in the 1L curriculum.
The second addition to the curriculum is a requirement that 1Ls take one of three new international law classes: Public International Law, International Economic Law, and Comparative Law. The official press release on the curriculum changes explained that “from the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe.”
Finally, 1Ls will add a problem-solving course, Problems and Theories, that will occupy the three-week Winter Term that 1Ls have traditionally skipped because of January final exams. The course will introduce different theories of law, and ask students to engage in complex problem-solving through teamwork and simulations. “Lawyers increasingly do not just litigate and parse texts,” said Elhauge, “but negotiate, theorize about the cause of problems, and devise solutions to them that may or may not be legal.”
Getting to “Aye”
The overwhelming support for the curricular reform has garnered praise for Dean Kagan, especially in comparison with the undergraduate curricular review at the Faculty of Arts and Sciences, which has dragged on for four years without a resolution. It prompted a Crimson article Tuesday whose title summed up the popular opinion: “Another Feather in Kagan’s Cap.” Professor Elhauge called the reform “an exclamation point on an already spectacular deanship,” and speculated that the success will further improve Kagan’s prospects of being asked to assume the presidency of Harvard University in the near future.
Professors commended Kagan for her ability to negotiate with a faculty as large and diverse as Harvard Law’s. “A year ago, we were presented with a report with suggestions that a lot of us didn’t like,” said Professor Martha Field, “and there was a substantial process of listening to our objections and taking them very seriously. “She’s succeeded in doing what people had wanted for ages but no one thought was possible. I don’t know exactly how she does it, but however she does it, it’s great.”
Professor Martha Minow, chair of the curriculum reform committee, explained the meticulous process the entire committee followed. “The faculty engaged in many discussions about the curriculum and curricular reform during my entire 25 years here,” said Minow in an email. “Since the fall of 2003, the committee appointed by Dean Kagan has met regularly, organized many meetings for groups of faculty members and for the entire faculty, surveyed alumni, held focus groups with students and practitioners, consulted with colleagues at other law schools and professional schools, reviewed reforms at other schools, and developed and refined the proposals we voted on last week.”
HLS: Leading or Following?
The initial reports of the curriculum changes characterized them as innovative and “sweeping” in scope. But some at other law schools thought the press coverage for the Harvard reforms was partly hype.
“Harvard alums need not get excited-the traditional Harvard conceit continues. One would never know from their account that what is new for them is old-hat at many other law schools,” said Professor Kenneth Graham from UCLA Law School, commenting on Inside Higher Education’s coverage of the reforms.
“Other law schools have already been changing their first-year offerings,” said Professor Brian Leiter of the University of Texas Law School. “Michigan added transnational law and Penn added administrative or regulatory law,” Leiter told the Crimson in a phone interview. “This is a case where Harvard is actually catching up.” Michigan does allow 1Ls to take international law as a first-year elective, but it is not required. The University of Pennsylvania allows 1Ls two electives, but does not require administrative or regulatory law as part of the first-year curriculum.
Some of Harvard’s peer schools have indeed updated their first-year curriculum. The University of Chicago Law School requires first-year students to take Elements of the Law, an interdisciplinary course similar to the theoretical aspect of the proposed Problems and Theories class, which has been taught at Chicago early as 1939. New York University has responded to the desire to teach statutory interpretation by requiring administrative law in the first year, and cutting property law as a 1L requirement. Yale Law School also does not require property law, and many law schools require constitutional law in the first year. Columbia Law School requires an ungraded Legal Methods course before the official start of the first year to acclimate students to legal analysis, and Georgetown University Law Center has an alternative “B” curriculum, taken by one section of students that emphasizes historical, economic, and philosophical sources of law and replaces courses like Contracts and Torts with courses like “Bargain, Exchange, and Liability.”
Kagan did not dispute that other schools had enacted curricular reforms. “What is new is the breadth and scope of the changes,” Kagan said. While other schools have changed single classes, HLS’s additions to the first year appear to be the most comprehensive among peer law schools.
Student reaction to the reforms was mixed. “I’m concerned about the expectations of students to pack more subjects into their first year,” said 2L Brook E. Gotberg. “Shortening the ‘core’ classes seems like it will give students less time to absorb these important topics.”
“On the other hand,” said Gotberg,” if this changes the policy of having 1Ls test after Christmas, allowing them to actually enjoy the break, it is a potentially beneficial change.”
A 2L who wished to remain anonymous approved of the new classes. “It’
s nice to know that future generations of HLS students interested in the public sector can actually learn something useful their first year,” he said, “rather than suffering through the ins and outs of the Fee-Tail Male and the Rule on Freaking Perpetuities.”