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8 Law Tchr. 1 (2000-2001)

handle is hein.journals/lawteaer8 and id is 1 raw text is: t A s GONZAGA UNIVERSITY Institute for Law School Teaching THE LAW Fall 2000 Integrating Theory in Large, Upper-level Classes By Curtis Nyquist It is comparatively easy to integrate theory in first-year courses and upper-level seminars. With first-year stu- dents, if you stress the importance of theory early and often they write it down and believe it. Course descriptions of upper-level seminars attract students with a bent toward theory. In my Perspectives: Readings in Contract Law sem- inar, students uncomplainingly spend the entire semester reading theoretical articles and books. The challenge is incorporating theory in one-semester, upper-level, high- enrollment courses. I teach three such courses (Secured Transactions, Negotiable Instruments, and Consumer Protection). The fact that these subjects are typically tested on the bar only widens the gap between what the students think the course should be about and what I think. After several years of trial and error, I have settled on a method of integrating theory in these courses that seems to work well. First, I choose one or more law review articles that are of general theoretical interest and can also be directly connect- ed to the subject matter of the course. I rotate several arti- cles through the courses (contact me for a list), and a student taking all three courses would read four or five different arti- cles. For the purposes of this essay I will use Duncan Kennedy's Form and Substance in Private Law Adjudication, 89 HARV. L. REv. 1685 (1976) (hereinafter F&S) as an example. My approach has three phases, and every class meeting has some theoretical component. The article is read and dis- cussed during one of the middle weeks of the semester. The approach, then, divides the course into the first section, a middle week, and the final section. First Phase In the very first meeting of the course as part of the gen- eral introduction, I emphasize the importance of theory, introduce the article to be read, explain how theory will be incorporated in the course, and promise that theory will be tested on the final exam. In every subsequent meeting dur- ing the first phase I devote a few minutes of class time to a lecture about the article followed by time for questions. I label these mini-lectures Five Minutes for Theory and link the mini-lecture to a case, problem, or statutory provision assigned for that day. For example, F&S distinguishes rules which are bright-line statements of law that appear to give the court little discretion (e.g., for the purposes of con- tract liability the age of majority is 18) and standards which are open-ended statements of some goal or policy that give the court wide discretion (e.g., the obligation of good faith in § 1-203 of the Uniform Commercial Code). In Secured Transactions, the rules/standards mini-lecture could be linked to the U.C.C. provisions for the effectiveness of a financing statement. Subsection 9-402(1) establishes a list of rule-based requirements (names of the parties, addresses, description of the collateral, etc.) while 9-402(8) creates a standards exception (a financing statement substantially complying with the requirements is effective as long as the error is minor and not seriously misleading). It might take a few class meetings and several more illustrations before the distinction sinks in, but once it does, rules and standards become part of the vocabulary of the course. I discuss in turn each of the major themes of the article. In F&S there are seven major themes: rules/standards (1687-89); legal argument based on the rules/standards dichotomy (1720-13); individualism/altruism as contradictory ways of organizing society (1713-22); individ- ualistic/altruistic substantive legal arguments (1710-13, 1722-24, 1737-40); general/particular (1689-90); formali- ties/deterrence (1690-94); and the history of conflict between individualism and altruism in American law (1725- 37). In each mini-lecture I am careful to illustrate the theme with one or more examples from a problem, case, or statute. Although the full article is not read until the middle week, I distribute it in the first class meeting, and the Phase One syllabus assigns those sections of the article covered in the mini-lectures. The goals of the first phase are to introduce

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