LAW7550 - Legal Argument and Interpretation in the Regulatory State

LAW7550 - Legal Argument and Interpretation in the Regulatory State

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The central focus of this course is legal reasoning - the ways American lawyers and judges interpret and argue about facts, rules, cases, statutes, and policies. We will focus in particular on the challenge of legal analysis and argument in the context of subject matter originally governed by the common law but increasingly regulated by statute, a pattern of development that describes most areas of contemporary American law though we will be drawing in particular upon two: the displacement of the common law of contract by the Uniform Commercial Code and of the common law of master-servant by the National Labor Relations Act. One goal of the course is to challenge the conventional wisdom about this pattern - i.e., that late 19th Century judge-made common law was pre-regulatory and that the 20th Century statutory revisions actually succeeded in displacing it - but our principal goal is to study closely the traditions of reasoning and argument that emerged during the common law to statute period and dominate American lawyering and judging to this day. Each week, the course will introduce a particular technique used in argument mobilization (e.g., competing plain meaning vs. purposive interpretations of statutes) through two or three carefully selected judicial opinions and will provide students with an opportunity to deploy and develop that technique through in-class exercises. Every other week, we will devote time to an in-class examination designed to test mastery of the technique. The exams will be graded and critiqued, and the final grade for the course will be based on cumulative bi-weekly exam performance with a possibility of upward adjustment to reflect excellence in weekly class preparation and participation.