Legal Commentary

Does the order in which we teach subjects matter? Some thoughts after the jump regarding the Administrative Law course. Provisional short answer: yes. Provisional longer answer: well, maybe, but look out for the downside!

I changed casebooks in Administrative Law this semester to one that uses a problem-based approach, which I shy away from in other courses. But Admin is difficult enough that I think problems can assist confused students. In a 3-hour course, one could quite easily spend all of class time reading the cases very closely, which is of course a valuable enterprise in and of itself. But that discussion occurs at the cost of getting students to get a grip on what government lawyers actually do, which is something I feel like emphasizing in this course right now.

The other interesting move this casebook makes that distinguishes it from most others is that it defers discussion of the constitutional issues in administrative law, most notably the delegation (or non-delegation, if you'd prefer) doctrine and the separation of powers. At modern administrative law's dawning in the New Deal, the constitutional issues of administrative law were paramount, and Felix Frankfurter focused his attention (perhaps disproportionately) on the constitutionality of the regulatory state. Frankfurter's students at Harvard then took his approach with them as they populated law school faculty ranks throughout the country. And so it has been ever since that administrative law spends its first 2-4 weeks looking like an advanced constitutional law course.

I see at least two big advantages to deferring the constitutional issues. As I suggested above, unless you're in the Office of Legal Counsel (or the state government equivalent), these issues aren't likely to be where you spend the bulk of your time as a government lawyer. Rather, understanding and complying with rules regarding rulemaking and adjudicatory procedures will be much more important to your life. Why not decenter the constitutional issues to reflect their role in the background of government lawyer practice? Second and more important, if students understand better what's at stake in the constitutional disputes -- that is, once they have a better sense of what agencies actually do -- they'll get more out of the otherwise relatively abstract constitutional issues.

I know there are downsides to switching things around, however, and today I experienced one directly. The constitutional component in the course brings Congress and the legislative process front and center; Congress then largely though not entirely drops out of the course, as we focus more on the work of agencies and judicial review. But Congress's role remains burned in students' brains. Taught the way I'm doing it this semester, Congress appears during the first units of the course to be a background player that a long time back wrote the statutory language that agencies interpret. And insofar as the students quickly pick up on the one word summary of Administrative Law -- sing it together now: deference! -- it seems like Congress hardly exists, given what agencies can do with their statutory authority.

The order of things matters in teaching, and the path dependent centering of constitutional law clearly gains its authority not simply because of habit but because it established and is consistent with a particular logic and perspective. But it's worthwhile, I think, to mess with that order sometimes to see what's gained and lost as students grapple with things in a different way. (But I'd still start with intentional torts before negligence!)