Oops, sorry, the bold face destroyed my paragraphs. Posting again.
That’s what numerous articles said at the time. And I think there was an article in Harvard Magazine.
According to these sources, they took a couple of years to discuss changes in the law school curriculum, and what they came up with was a shift in the required core courses from Common Law to Positive Law and International Law, those terms all being mentioned specifically.
Basically, it ties in with the idea that the Constitution is a “living document,” and that law should change over time—in a liberal direction, of course.
Here are extracts from a speech Kagan gave in 2008, in response to criticism of her curricular reforms. She did not eliminate all aspects of Common Law, but she certainly diminished its importance in favor of Positive Law, International Law, and what she refers to as LegReg—Regulatory legislation.
In the circumstances, and under attack in the Washington Times and elsewhere, it may be assumed that she downplays the size and degree of these changes.
1L reforms: The foundation of legal education is the 1L curriculum. What students learn during their 1L year shapes their sense of what law is — its scope, its limits, its possibilities. For this reason, we focused much of our attention on this critical first year.
What we did: Like most law schools, with minor variations, Harvard Law School’s traditional first-year curriculum included civil procedure, criminal law and procedure, torts, property, and contracts - all worthy and important subjects but insufficient in themselves for all we need to accomplish. Ultimately, what we decided to do was to supplement this standard curriculum with three new required classes - one focusing on the statutory and regulatory aspects of law, one looking at law in a comparative or international framework, and one where students work in teams to resolve the sort of complex problems that lawyers so often confront. And to the traditionalists among you — please don’t despair! We didn’t eliminate Civil Procedure or Contracts — or any other basic 1L class. We made way for our new offerings by slightly paring the rest. Our students — and our professors — seem to have survived.
Curriculum update: The students who arrived last September — members of the HLS Class of 2010 — were the first to experience these new offerings, and early reports are everything we could have hoped for. Through intensive work with statutes and regulations from the start of law school, students are developing a rich understanding of the institutional frameworks and modes of the regulatory state — and they and their professors have been happy to find fertile connections between these materials and the rest of the first-year program. Indeed, this course — which students call LegReg for “legislation and regulation” — was the most favorably evaluated of any course in the first-year program last year — a remarkable accomplishment for a new class and its teachers. The courses in international and comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world — a critically important endeavor.
1L reforms in real-world context: In recent weeks, I suspect that all of us watching the global credit meltdown and the desperate legislative efforts to resolve the crisis have a new appreciation for the powerful roles of legislation and regulation and a transnational perspective. These recent events underscore that these matters are foundational — are part of the core of legal thought and activity in this new century. This reality must be reflected in the curriculum of the 21st-century law school, and I’m proud that HLS is leading the way in this direction.
Okay. According to your post, the 1L curriculum included the classes I mentioned: civil procedure, criminal law and procedure, torts, property, and contracts. It wasn't a case of me being lucky or smart. Those are simply core 1L classes.
But your posts also doesn't say that any of these classes were eliminated - the 'basic common law" ones being torts, property, and contracts. It says the standard curriculum was 'supplemented' with three new classes. Only one of the three dealt with international law. One was on complex issues. That makes sense; in the real world few legal matters are simply "hey, that's a fee simply determinable! We win!"
One is on legislation and regulation. I took classes in those areas, just not general classes and not as a 1L. The sad fact is that it would be virtually impossible to practice law today without understanding how legislation is interpreted and enforced by regulation. (I hate that, although two federal laws and the accompanying regulations have basically been my career; I advice people on how to keep the government at bay.)
You and I could probably spend a long afternoon agreeing on how judicial activism and liberals have perverted the Constitution - but as a conservative attorney, a member of the Federalist Society, I don't see anything in this new curriculum that scares me. And I don't see a thing about bowing to imperial law, or shifting to "Positive Law." You may not have quoted all you meant to quote, because I didn't see the term "Positive Law" "mentioned specifically." And we do live in a 'regulatory state." You need lawyers to protect you from that as much as the government needs lawyers to ensnare you in that (although I wish we only needed two lawyers, total, in the nation). At some point we need lawyers who understand the 'regulatory state' to dismantle it, solely because Semtex and C-4 don't work. (That was a joke, Homeland Security)
I'm simply not distressed by these changes in the curriculum, but I appreciate your concern for the Constitution.