As Harvard Law Dean, Kagan Did Not Require Study of U.S. Constitutional Law But Did Require Study of International and Foreign Law

By Pete Winn, Senior Writer/Editor, CNSNews.com
May. 29, 2010

Elena Kagan, President Barack Obama’s choice to replace retiring Supreme Court Justice John Paul Stevens on the Supreme Court, is best known for moving Harvard Law School away from the 100-year old “case-law method” of legal study.

But in the process, critics say, she 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.

As dean, Kagan won approval from the faculty in 2006 to make major changes to the Harvard Law's curriculum.

“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,” Robert Alt, senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, told CNSNews.com.

“Currently, at Harvard, constitutional law is not required for first-year law students, or even for graduation,” Alt added.

Indeed, according to Harvard documents, constitutional law is not listed among the law school’s academic requirements, though the catalogue for 2010-2011 does list more than a dozen elective courses dealing with some form of constitutional law.

But in a 2006 Harvard news release explaining the changes, Kagan explained the move away from constitutional law was deliberate: “From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe -- global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.

“Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,” the guide said.

Among the three new required courses Kagan introduced, one focuses on public international law, involving treaties and international agreements, and the second is on international economic law and complex multinational financial transactions, according to a Harvard news release.

But the third course, on comparative law, “will introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions,” the release said.

In a 2008 article published in The Greenbag, a sometimes humorous journal of serious legal writing, Kagan explained the reasoning for her changes by saying that lawyers need “tools for all the roles they will be called on to play," which, she suggested, include solving problems “ranging from climate change to terrorism to economic insecurity," and "crafting frameworks that enable scientific and artistic creativity, and devising workable approaches to chronic conflicts around the world.”

“Our mission is not simply to train lawyers; more broadly, we must seek to train leaders--visionary thinkers and practitioners capable of designing new institutions to meet individual and societal needs,” Kagan wrote.

Alt, meanwhile, agreed that some of the changes Kagan instituted made sense.

But, he said, “What doesn’t make sense, I would say, is throwing out constitutional law, as a focus of study, and replacing it with international law."

Professor Ronald Rotunda of Chapman Law School in Southern California agrees that it is appropriate to add an international perspective, but not at the expense of constitutional law.

Rotunda is the author of a leading course book on constitutional law being used in law schools, Modern Constitutional Law, and his books and law articles have been cited more than a thousand times by state and federal courts at every level, from trial courts to the U.S. Supreme Court.

“Any English major, even if her specialty is early Victorian literature, should have familiarity with Shakespeare," said Rotunda. "That’s just something that any English major should have. And any lawyer, even if he or she never argues a constitutional law case, should know the basic principles of constitutional law."

Alt, meanwhile, said the changes raise questions about Kagan, especially in light of what we don’t know about her.

“One of the things which we don’t know about Kagan, which she has not been terribly forthcoming on in previous questioning (during her nomination) for solicitor general, is how she views international law,” Alt said. “Should domestic law be influenced or modified by international law? We don’t know what she thinks.”

Alt said it is important to know just how much she supports reliance on international law.

“This is an important question because there are others in the Obama administration, like Harold Koh, for instance, who have suggested with regard to the First Amendment, for instance, that perhaps the First Amendment should be modified in some way in accordance with international norms, in order to facilitate compliance with international agreements.”

The First Amendment, by the way, reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”