Lessons from the Turn of the Twentieth Century for First-Year Courses on Legislation and Regulation

Abstract

This essay — part of a special journal issue on Legislation and Regulation and Regulatory State courses as core elements of the law school curriculum — approaches the debate over adopting these courses by looking back to the controversy stirred by teaching administrative law in law schools at the beginning of the twentieth century. This essay argues that sources of resistance to administrative law at that time not only help to explain the slow pace of adoption of “Leg-Reg” and “Reg-State” courses today, but also inform what material these new courses should cover. At the turn of the century, both commitment to the case method as the exclusive pedagogy for law teaching and jurisprudential principles that understood courts to be the privileged sources of law resulted in early administrative law courses being normalized within the case method, excluding the internal law and decisionmaking of administrative agencies from their coverage. Based on the premise that law students should confront the primary sources of law in our current regulatory legal system, first-year Leg-Reg and Reg-State courses should not replicate the traditional, exclusive focus on judicial decisions. Rather, these new courses are the right occasion to introduce regulatory and congressional materials as primary sources. That coverage choice, moreover, provides preparation for an upper-level administrative law course focused on how courts review agency action, while minimizing duplication in coverage. Even more importantly, treatment of nonjudicial primary sources in these new courses helps to bring the image of law conveyed to first year students closer to the true dimensions of our legal order.