Monday, August 31, 2009

THE Legal Knowledge We Take For Granted

At a law school soirée a couple of weeks ago, one of the assistant deans mentioned that she made it halfway through her first year of law school before she understood the difference between appellate courts and trial courts. That got me thinking about the kind of legal knowledge we take for granted—the background necessary to absorb the knowledge learned in a course of study.

Once you’ve made it through law school, let alone actually practiced or taught law, you do take this kind of information for granted. It’s difficult to remember that at one point you didn’t know the difference between a trial court and an appellate court. But just as you can’t study medicine without first knowing the location and function of the different parts of the human body, you can’t really start studying cases or statutes without first understanding what courts do and the relationship between legislatures and courts. This kind of knowledge is a precursor to learning both the substantive law covered in the 1L curriculum and the skills knowledge (often taught in a stand-alone course) of legal research and writing and oral advocacy.

Law schools generally assume that students will simply pick up this kind of knowledge along the course of the first year. That may be true—we do all manage to get the hang of things sometime before the end of 1L year—but I think it would be worthwhile spending some time actually teaching this knowledge right at the beginning of law school.

I am teaching an introductory “legal skills” class this year, so this isn’t just an idle concern. Below is the list of knowledge areas I’ve come up with that together constitute an indispensable precursor to studying law. Of course, students need not master the intricacies of these enormously broad and significant topics right at the outset, but I do think a basic understanding of them is a necessity:

- the primary sources of law and how they relate to each other: constitutions, statutes, cases, regulations (As an international lawyer, I would add treaties, but I’m not sure how relevant they are to a beginner law student.)

- the common law method: evolution of the law through cases, analogical reasoning, the role of policy arguments, how these contrast with the civil law method

- the nature and function of precedent: binding and persuasive authority, rationes decidendi and obiter dicta, how courts make use of prior cases

- court hierarchies: how trial, intermediate appellate, and supreme courts relate to each other and their relative functions, the structure of the court system in this country (including, in federal states, the relationship between federal and provincial/state courts)

- the relationship between law and equity: their historical separation and later merger, the availability and relative strengths and weaknesses of legal and equitable remedies

- the general divisions of public and private law: on the public side, criminal, administrative, constitutional, and public international law; on the private side, contract, tort, property, and arguably restitution

substance and procedure: the blurry line between the two, the way they affect each other

I’m curious what you all think about this list. Is this type of knowledge better picked up along the way, rather than taught in a comprehensive manner at the outset of law school? Am I missing anything important? I suspect that this list would be pretty similar in the various common law countries, but how different would it be in a civil law jurisdiction?


  1. I was struck by a few similar thoughts last week in discussion with my colleague about whether first-year courses are sufficiently coordinated to avoid repetition of these basic fundamentals of law (or, worse still, whether there is a lack of communication among 1L professors such that constitutional law Professor X assumes contracts Professor Y will cover those basics when, in fact, Professor Y is making the same assumption about Professor X!).

    If, for whatever reason, law schools cannot manage to do this well, then I suspect companies like Law Preview ( - which market themselves as a prep-school for law school - will continue to do as well as they have.

  2. There is an important difference between American and European (I am mainly referring to Nordic legal education which I know best) legal systems as regards issues such as the sources of law or public/private distinction. In Europe the first thing the student is going to learn is the doctrine of the sources of law and their hierarchical relations (the constitution being the highest, ordinary statutes next, then Government bills followed by precedents and so on, each with different level of binding force). I am not sure whether such a clear, hierarchical order exists in American law. During my LL.M. studies I attended two 1L courses (torts and property), but in neither course was this issue discussed. The public/private distinction, too, was largely absent, and our property course contained a lot of both (zoning and fee simple, for instance, the first of which would be taught in public law courses in Finland or Sweden).

  3. I've been teaching an introductory course on the Civil Law Tradition for 3 years now. I agree that all that you mentioned are items that, if discussed in first year, will make the learning experience more fruitful. In the civil law tradition, I would add a few more items, namely, a reference to the formalist account of law and an explanation of where civil codes come from - that is, an explanation of why the French revolutionaries came out with a Civil and Commercial Code and how that had a massive impact on how we civilian lawyers understand legal reasoning and legal education. I also add that this has been, in my view, problematic because civilian lawyers and judges usually think that our codes are "the dogma", that judges should not make law because that would be against the dogma and that lawyers should only study positive law - because, given the existence of the dogma, substantive discussions are out place. Of course, this is just a simplification because legal practice much more complex. But the deference to the dogma is still a dominant feauture in the civil law tradition.
    Thus, I try to make an effort to have my students understand that Codes are to be read in terms of a further constititutional and international order which, in fact, is the background againts which civil codes are to be understood.

    I also think that a bit of moral theory is helpful. I take some time to explain how law could be understood in utilitarian and deontological terms and how different legal institutions reflect a concern for rights or general welfare. This framework is, I think, useful in explaining and understanding the tensions present within different legal institutions.

    In the civil law tradition, it is usually the case that students come directly from high school. This makes it even more difficlt to take knowledge for granted because many more things have to be explained.


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