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8 Law Tchr. 1 (2000-2001)

handle is hein.journals/lawteaer8 and id is 1 raw text is: t
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Institute for Law School Teaching


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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