Teaching Cases by Historical Era, rather than Subject

August 31st, 2010

Tomorrow in class we will be discussing Erie Railroad v. Tompkins and I’ve spent some time considering this case. I had not read this case since I was a 1L. When I studied it as a 1L, I remember spending so much time trying to grasp my mind around the holding of the case, the overruling of Swift v. Tyson, and what laws federal courts should apply when sitting in diversity. I totally missed the context in which the case was decided.

The opinion was issued in 1938, near the peak of the FDR’s fight with the Court. This opinion, in large measure, was a rejection of the legal formalism that courts had employed for nearly a century, and represented the adoption of Holmes’ legal realism. Commensurate with the rejection of the “general” common law was also a repudiation of the idea that some natural/common/whatever you want to call it law existed. This broader jurisprudential point is really missed when studying Erie in Civ Pro.

As 1Ls we study cases in silos by topic, such as torts, constitutional law, civil procedure, criminal law. There is very little spillover from one class to the next. But when one views all of the cases from a certain era across the spectrum, the law really comes alive. Viewing Erie through a jurisprudential fight over formalism and realism makes it so much more fascinating.

What about a class that teaches cases by historical era rather than by subject. This would be a fun 3L survey class. After a student has learned all the substantive law, they can relearn it as a whole. This is how I visualize the law, as I always try to connect and interrelate disparate doctrines.

For example, for the New Deal I would lump in Erie with Carolene Products, Schechter┬áPoultry, Wickard, and a few other pre and post 1936 cases to highlight the shift in the Court’s jurisprudence, as well as the new interaction between the states and federal government.

For the Roberts Court, Iqbal and Citizens United could be taught together. They are usually studied in different classes–Civil Procedure and Constitutional law. But these cases, when pieced together represent the aggrandizement of power in powerful larger groups, at the cost of individuals (I do not necessarily buy this narrative, but it makes for an interesting lesson plan).

Just a thought.