Jerry Mashaw and the Public Law Curriculum

Written for a Yale Festschrift celebrating Professor Jerry Mashaw’s extraordinary life of scholarship, this essay takes his first published teaching materials as the jumping off place for an essay on the impact of early choices about the teaching of public law courses on the materials and issues our students see, and the changes that might be in the wind as new materials on Legislation and the Regulatory State emerge. With Richard Merrill, Jerry 40 years ago designed “The American Public Law System” for the first year of law school, treating legislation and administrative action as subjects worthy of serious study, side by side. It and a few other sets of materials (including, notably, Hart and Sacks’ “The Legal Process”) sought to depart from the strict diet of cases that had characterized American public law teaching from the beginning of the 20th Century, thanks in large part to the dominance of Christopher Columbus Langdell’s Socratic Method, which treated cases as the necessary – and virtually exclusive – medium of classroom instruction. To what extent might students in these new courses now be invited to view legislatures and agencies, both as institutions and through their work, through other than judicial eyes? The law school curriculum endlessly invites attention to courts and the means by which they settle (that is to say, make) law. To be sure, its students do not often see the attending lawyers’ work by which judicial action is usually (one might say preferably) shaped, but the typical first-year curriculum includes not only Civil Procedure and much discussion of the strengths and weaknesses of common law processes, but also an exercise in brief writing, moot court. Has the Langdellian imperative to use cases only as the primary materials of law study been overcome in these new courses? Do they invite similar direct attention to these other institutions and their ways, before which today’s lawyers may so often have to appear? Or do public law and its institutions still appear primarily through the eyes of judges in decided cases, looking backwards over some particular, completed piece of work? After some attention to teaching materials of the 20th Century, the essay turns to an assessment of the more recent works on Legislation and the Regulatory State, finding signs of change in some, but not all of them. The first year of law school remains wedded to the common law and to judges; and these new courses could require understanding of the real world of today’s law. If, of course, they are taught outside the Langdellian model. This material, as finally edited, has been published in Administrative Law From the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw, edited by Nicholas R. Parrillo (Cambridge UP, 2017). This working paper version is free to view and download for personal use only, and not for re-distribution, re-sale or use in derivative works. © Peter L Strauss The final form of the essay can be found in the cited work, here in the Cambridge UP online catalog