Administrative Law and the Law School Curriculum

by Seth Davis — Tuesday, Jan. 5, 2016

Over at PrawfsBlawg Jay Wexler explains that Boston University School of Law has made Administrative Law part of the required 1L curriculum. This decision, and reactions to it, have me thinking about where and when we offer Administrative Law to law students and what we teach them when we do.

I’ve just finished another semester of teaching Property Law, which may seem like it has nothing to do with teaching Administrative Law. But I find it’s impossible to teach students about our property system without teaching them some material about agencies and administrative law. For instance, there’s the Fair Housing Act, and to teach the FHA requires teaching about HUD’s interpretations of the statute. Or there’s mortgages, Dodd-Frank, and the CFPB. Those are just two examples of the intersection between federal public administration and property law, a subject I’ve written about here. And there are many more examples of state, regional, and local administration as part of our property system. Think land use regulation, or property rights in water, for example.

We use agencies to solve many social problems. So it’s not surprising that agency action would affect property – or tort, or contract. All of which is to say that we can, and perhaps should, integrate some teaching about agencies and administrative law into substantive foundational courses. Property may be an especially good vehicle because of its mix of private and public law.

I’ll admit that my class may be unique in so far as Property Law at UCI Law is a 2L and 3L course, not a required 1L course. That being said, my experience teaching Property Law, and especially my students’ interest in the choice between courts, agencies, and the market to solve property problems, leaves me with questions about the where, when, and what of teaching administrative law. Should agencies and (a little) administrative law be integrated into foundational courses, which traditionally have focused upon the work of courts? Should students be offered (or required to take) Administrative Law in the first year, on the theory that the work of agencies is as foundational as the work of courts? Or would teaching the subject distract students from learning the foundational skills of close reading, reasoning by analogies and distinctions, and so on? Finally, for me the most interesting question concerns what we teach about administrative law: Is it enough to offer (or require) our students to learn about federal agencies and federal administrative law, or should we make sure they’re exposed to state administration and state administrative law as well?

The last question interests me because one argument for making Administrative Law a required course is that practicing lawyers need to understand agency action and regulation. If my experience teaching Property is any guide, to understand regulation and what agencies do requires thinking as much about state law and state agencies as about federal law and federal agencies.

Of course, it’s easy to argue we should broaden the curriculum to better reflect law’s complexities in a complex world. But teaching federal administrative law – with all its difficult questions about the separation of powers and institutional competence – is hard enough, particularly if we’re going to be teaching it to 1Ls. Pairing that with state administrative law would be harder still.

Perhaps, then, the best we can do is introduce some material about agencies and administrative law in foundational substantive courses like Property Law while offering (or requiring) a Legislation and Regulation course in the first year. With some coordination, the 1L curriculum could thus offer students some material about both state and federal agencies. And with some luck, it might convince students that if they care about the environment, or healthcare, or homeownership, or banking, or just about any other social problem, then they care about agencies and they need to take Administrative Law.

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