Oliver Wendell Holmes wrote in 1871 "torts is not a proper subject for a law book." One would be hard pressed to show that any of the courses in the first-year foundational curriculum contain a coherent body of doctrine that can be logically deduced from fundamental principles; instead their content is best defined by reference to the boundaries of adjacent areas of law. Is nuisance a problem of torts or of property? What frame of analysis (torts or contract) should be brought to bear on the tortious interference with contract? The concepts "public law" and "private law," as well the notions of "canon," "field" and "foundational curriculum," all rest on a set of unstated premises for their integrity. Certain legal concepts, forms of reasoning, and values are privileged, while others are marginalized and devalued, if not ignored. Critical Legal Thought will retrace and re-examine the courses that make up the foundational curriculum with a critical eye toward uncovering their hidden assumptions, unstated premises, and leaps of faith that give much of the law we teach and learn a "taken for grantedness." This course will introduce second-semester, first-year law students to a range of critical approaches to law with the goal of giving them tools for testing legal arguments, assertions of legal pedigree, and the underlying normative premises that often make legal outcomes seem both just and inevitable.
The first weeks of the semester will examine the underlying structure of "regular law," including the work done by legal positivists and formalists. From there we will cover critical approaches to the assertion of laws objectivity and rationality. Beginning with Legal Realism and its progeny Critical Legal Studies, readings will cover Feminist and Critical Race critiques of laws aspiration to objectivity and neutrality. We will then move to examine the foundational curriculum, including Torts, Contracts, Criminal Law, Property and Civil Procedure.