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Friday, May 28, 2010
CNS Falsely Claims Kagan Stopped Harvard From 'Requiring' Constitutional Law

A May 28 article by Pete Winn claims that as head of Harvard Law School, Elena Kagan "moved the nation’s premier law school away from requiring the study of U.S. constitutional law towards the study of the laws of foreign nations and international law." Winn uncritically quoted Robert Alt, senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, saying, "My understanding is that she instituted three new courses to the required curriculum and, in so doing, got rid of a requirement to take constitutional law."

In fact, as Media Matters reports, constitutional law was never a requirement in the first place, and the new curriculum did not come at the expense of constitutional law:

In fact, the curriculum changes Kagan instituted as dean, which were unanimously approved by the Harvard Law School faculty, added "new first-year courses in international and comparative law, legislation and regulation, and complex problem solving" and condensed the "traditional first-year curriculum (contracts, torts, civil procedure, criminal law, and property)."

Kagan didn't "drop" or "replace" con-law, it wasn't required in the first place. Prior to her deanship - in 2001 and 2002, for example - a constitutional law class was not required. Harvard Law JD degree requirements included "required [first-year] courses in Criminal Law, Contracts, Civil Procedure, Torts, and Property," "Legal Reasoning and Argument (LRA)," "a first-year elective course; a course in professional responsibility; fifty-two credits in second- and third-year elective courses; and a satisfactory piece of written work."  As is the case now, courses in both the second and third year were all elective.

Furthermore, Kagan's addition of a 1L "Legislation and Regulation" requirement, was designed, in part, to "naturally lead into, and enable students to get more out of, advanced courses in the 2L and 3L years, on legislation, administrative law, a wide range of regulatory subjects (e.g., environmental law, securities law, telecommunications law), and constitutional law."


The original headline of Winn's article got it wrong as well, claiming, "As Dean, Elena Kagan Moved Harvard Away From Requiring Law Students to Study Constitutional Law." The headline now reads, "As Harvard Law Dean, Kagan Did Not Require Study of U.S. Constitutional Law But Did Require Study of International and Foreign Law" -- no longer outright false but still misleading, since there was never such a constitutional law requirement.

Posted by Terry K. at 10:59 AM EDT
Updated: Friday, May 28, 2010 11:03 AM EDT

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