Spring 2015: Foundation of Law--Lecture I

Office hours: By appointment. On Wednesdays following many classes Professor Boyle will be
in 3041 during lunch. Details in syllabus.
Class Notes:
I. Survey Results (what they demonstrated):
A. There were lots of ways of looking of law that you felt you had not fully grasped. In
particular, a shortage of theory, history, economic analysis and structured argumentation. Also a
need for integration of material across classes
B. The typical law-school method is to read cases in specific courses that ideally
should expose you to the different doctrinal approaches.
C. This class should outline these different approaches in order to hopefully help you put
them together across classes. If you master them, they will among other things, help you learn
the law better, understand it in context and in historical detail, make sophisticated legal
arguments, and so on.
II. About the class
A. Classes 1 and 2: A history of legal consciousness at warp speed. These classes will
cover the big movements and changes within legal history.
B. Class 3: A 10-page handout on the standard legal arguments and an assignment at the
end of that class. It is a short, ungraded 1-2 page paper involving a hypothetical for which youll
need to generate all the types of arguments you can make.
C. Class 4: Law and economics
D. Class 5: The differing methods of constitutional interpretation/Heller. Are the methods
you choose related to the result you want?
E. Class 6: Exposure to the major theories of jurisprudential thought.
Basic goal of course: to give you a holistic view of the law.
Final exam Feb 24th.
III. The Mensch Article:
A. At different times in American Legal History, you would get different answers to the
question: What does it mean to think like a lawyer?

1. Post-Revolution America: Lawyers were viewed with skepticism. America had

rejected the English law. So the first thing lawyers do is say, Yes the law has a lot of bad
things, but the core of the common law is good and can be rescued. But only by us.
Lawyers believed they could purify the common law and bring it to its fruition from
where it had been held down by archaic British feudalism. There was no law of torts, or
anything system with categories like that. Instead, there was a great deal of creativity and
appeals to the great tradition of common law. Also, there was an understanding that law
should be reasonable, and that the lawyer should inform the citizenry about the law.
2. Classical Legal Thought: This is the period that basically provides the subjects
you learn in 1L. The leader of the movement was Christopher ColumbusLangdell. The
classicists were a diverse group, but shared certain tenets:
a. Attempted to create legal science: take from a lot of phenomena general
rules that can be subjected to tests to refine these to a few simple principles.
b. A belief that the law should be taught by introducing a series of cases
and using the Socratic method to distill the living crystal of the law within them.
c. A belief that, with a few premises, all of the law could be determined
through reason and principle. Everything could be determined by categories of
thought deduced to consequences.
d. A belief that the law was rooted in logic, not policy.
e. A vision of society as arranged in legal spheres. Each individual is
absolute within their sphere.
f. The classical vision also accounts for the structure we have today. The
outer shell of the law still looks the same to us, but what you learn in Torts is very
different than what would have been taught in classicists heyday.
3. Legal Realism: Between 1900-1920, the legal realists begin to criticize
classism. They thought the classicists arguments were question begging, circular, or
both. So instead the legal realists looked at balancing the various interests involved.