The Metamorphosis of Legal Education Symposium on Legal Education

Professor Brook\u27s remarks this morning provide a context for my own. I mean to say a word or two for the classical era. One of the characteristics of legal education over the past half century or so, one that we ought not give up, has been its passion for order in a chaotic world. Striking as it is to say that a passion for order ill suits a chaotic world, the world has ever been chaotic – and that passion, our principal defense. The question is, with what principles of order do we exercise that passion, to subdue unruly fact. Do we look to doctrine, to the characteristic tools of the legal profession, to understandings economic or semiological? Recent years have seen a shift in focus concerning what constitutes order, at least from a pedagogic perspective. We have turned our attention to the instrumental or vocational side of the legal profession, as distinct from concern for the content of law and the public order aspirations to which law may relate. That shift seems to me reflected in Professor Gorman\u27s comments

Rulemaking in the Ages of Globalization and Information: What America Can Learn from Europe, and Vice Versa

This paper stems from a project on European Union Administrative Law undertaken by the American Bar Association\u27s Section on Administrative Law and Regulatory Practice. It explores the generation of normative texts by the Commission of the European Union, its executive body, from the perspective of Americans familiar with notice and comment rulemaking. Legislative drafting (an exclusive responsibility of the Commission), subordinate measures corresponding to American rules and regulations, and soft law generated by the Commission are all considered. In creating legislative proposals, the Commission uses techniques quite like American rulemaking, but with consultative practices (including electronic consultations) that seem more conducive to dialogue, and less open to simple grass-roots lobbying efforts. Soft law processes are also often highly consultative. But subsidiary legislation (rules and regulations, in American parlance) are generated following procedures considerably less transparent and open to public input, such as comitology, than one finds here

Presidential Rulemaking

One of the prominent issues during the 1992 presidential campaign was abortion, in particular the federal government\u27s role in financing counseling activities that might promote it. In the Bush Administration, the Department of Health and Human Services had adopted a controversial regulation to withhold federal funds from any family planning or other medical service that included counseling about abortion in its activities; the Clinton campaign promised to rescind that regulation if Clinton were elected President. Shortly after his election, in a prominent White House ceremony, President Clinton announced that he had directed the rescission of the prior rule and the initiation of a fresh rulemaking to consider the issue. As the 1996 campaign approached, teen-age smoking, and the role of the tobacco companies in promoting it, emerged as a large public issue. During the summer of 1995 the President announced that he was directing the undertaking of a major rulemaking effort to control the advertising and distribution of tobacco products to minors; and in August of 1996 he announced the issuance of the rule. While the voluminous rulemaking documents emerged from the Food and Drug Administration, in which any authority to adopt the rule had been statutorily placed, press releases called it the President\u27s rule, and President Clinton led the public relations effort to announce its adoption, as he had its earlier proposal

Educating Citizens

Socrates and his followers, the Cynics among them, put great store in educating the youths who would become the leaders of the Athenian republic. The Athenians agreed that education of their youth was of the utmost importance for their state, and executed Soc-rates for corrupting them. As I thought about how these concluding remarks could do more than cast a pale reflection of the extraordinary learning and thought that have preceded them, talking about education leapt to mind

The President and the Constitution

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety.... The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.... With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations

When the Curtain Must Be Drawn – American Experience with Proceedings Involving Information That, for Reasons of National Security, Cannot Be Disclosed

Speaking about counter-terrorism in France today is a fraught subject, given the recent awful events that so dramatically illustrated the tensions between our precious liberties, and the steps that might be required to protect them. The impact of terrorism on liberty is, however, my subject. The Twenty-first Century’s wars against terror, like the Red Scare and Cold War of the Twentieth, have repeatedly put pressure on procedural values ordinarily observed in American adjudications. In criminal, civil, or administrative proceedings, tribunals may be faced with the government’s wish to rely on evidence that, for reasons of national security, cannot be disclosed to the private parties concerned in the matter. There may even be circumstances in which the government is unwilling to reveal to the tribunal itself information about the source of a fact proposition it wishes to assert – for example, the identity of a secret agent who has provided it or the manner in which an intercepted communication has been obtained. Similarly, the government may wish to resist a private demand for information, that ordinarily it would be obliged to supply, because it is a state secret – and, again, it may be unwilling to disclose the information even to the tribunal alone, as might be thought necessary to permit assessing the accuracy of its claim

Administrative Law: The Hidden Comparative Law Course

What does today\u27s Administrative Law course give your students that you might not be aware of and might be helped by knowing? That, as I understand it, is the question I am to answer. But we may also want to think about the overall shape of the curriculum: it may be useful to ask about fundamental issues our students may not be aware of, that may not be dealt with elsewhere in the law school curriculum. I\u27ll spend most of my time on the question I\u27ve been asked to address, but I hope you will accept a few sentences on this second question. For administrative lawyers, that probable gap remains the one Harold Lasswell and Myres MacDougal suggested long ago, that contemporary law studies should include explicit instruction in the skills of public policy analysis – in particular, how to evaluate the need for and probable effectiveness of regulation. Administrative Law is the hidden comparative law course of the public law and adjectival law curriculum. In my judgment, that is its main contribution to your students\u27 appreciation for your own subjects. Its students come to grips again and again with problems whose contrasts with those of the standard court-centered curriculum can illuminate their other courses. The common thread here is in the rather pragmatic adjustments legislatures and courts have made to the exigencies of the administrative state, in the face of legal theories developed in the simpler theoretical world of one-function institutions and individual rights. Ideology and theory have rarely prevailed in competition with function and necessity. Although the situation may be changing, as we shall have to discuss, Administrative Law repeatedly confronts its students with doctrinal differences driven by the necessity of the case, which can illuminate standard courses as well as our own. I\u27m going to give a few examples, proceeding in alphabetical order through the curriculum and stressing those developments that are more recent in origin

Legislation That Isn\u27t – Attending to Rulemaking\u27s Democracy Deficit

Philip Frickey\u27s commitment to practical legal studies won my admiration early on in his career. In this welcome celebration of his extraordinary career, it seems fitting to essay something practical – to attempt a constructive approach to an enduring problem – that has some bearing on his lifelong attention to the problem of interpretation. If it will not make the problem go away, perhaps it will provide a basis for understanding its inevitable tensions, and in that way will help us step past theoretical exegeses suggesting the possibility of simple answers