Kagan didn't “drop” con-law for “foreign law” at Harvard

Wash Times claimed that under Kagan, “Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in 'International/Comparative Law.'” From a May 25 Washington Times editorial headlined, “Kagan's Foreign law trumps con-law”:

Solicitor General Elena Kagan's nomination to the Supreme Court should founder unless she adequately explains why she quite literally put “International/ Comparative Law” ahead of the U.S. Constitution. Senators should question Ms. Kagan in great depth about her views on the applicability of foreign law in American courts.

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The increasingly influential law-and-policy organization Americans United for Life ... has raised several other red flags with regard to Ms. Kagan's views on the relative weight of foreign law and the U.S. Constitution. It was under Ms. Kagan's leadership while dean of Harvard Law School, for instance, that Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in “International/Comparative Law.” The de-emphasis on the Constitution itself is part of a horribly misguided trend in liberal academia. To replace con-law with international law is symbolic of a mindset that runs far afield from the basics of American legal tradition.

Kagan didn't “drop” con-law -- it wasn't required in the first place -- and her curriculum changes were unanimously approved by Harvard Law faculty., 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 2002, for example -- Harvard did not require J.D. students to take a constitutional law class. Harvard Law J.D. 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, according to Kagan, the 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.” Kagan has taught constitutional law at Harvard herself, and has earned praise from former Reagan Solicitor General Charles Fried, a constitutional law professor who taught at Harvard while Kagan was dean.

Justices -- including Scalia -- “consider foreign practices in some situations”

Wash Times claimed it would be “wrong” for Kagan to “offer reasonable foreign law arguments” as SG. From The Washington Times editorial:

The available evidence suggests that Ms. Kagan's views don't comport with that judicial principle [that “foreign law should not even 'influence' a U.S. court decision”]. The first clue came during her confirmation hearings for her current position of solicitor general. Here's what she said: “At least some members of the court find foreign law relevant in at least some contexts. When this is the case, I think the solicitor general's office should offer reasonable foreign law arguments to attract these justices' support for the positions that the office is taking.”

Well, no. Even to win a case, it is wrong to argue in favor of something on which it would be wrong to decide. Rather than playing into misguided prejudices of current justices, the solicitor general should argue her position based on the Constitution and laws of our own land, regardless.

Kagan's duty as SG is to make every reasonable argument to defend federal laws and actions, and Supreme Court Justices -- including Scalia -- “consider foreign practices in some situations.” The Washington Times claimed that it would be “wrong” for Kagan to, in her words, “offer reasonable foreign law arguments” in her capacity as solicitor general, and later added that for her to do so would be to "[play] into misguided prejudices of current justices." However, it is the role of the solicitor general to defend federal laws and actions, as long as there is a reasonable basis for them - indeed, Sen. Orrin Hatch noted that at Kagan's solicitor general hearing, she “properly affirmed that the Solicitor General must make every reasonable argument defending the constitutionality of federal statutes” -- and the Supreme Court has a history of citing decisions by foreign courts in their rulings. A majority of the Supreme Court recently reaffirmed the relevance of international law in Graham v. Florida, and, as a 2008 New York Times article reported:

The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite such a decision is to be bound by it.

Even conservative scholars acknowledge that American judges have long cited decisions by foreign courts in their rulings. “The Supreme Court has been doing it for basically all of our history, and with some degree of gusto,” said Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, a conservative legal group. Professor Calabresi said he generally opposed the citation of foreign law in constitutional cases.

Judicial citation or discussion of a foreign ruling does not, moreover, convert it into binding precedent.

Moreover, legal expert Eugene Volokh, citing a majority opinion authored by conservative Supreme Court Justice Antonin Scalia, noted that “even Justice Scalia, a firm critic of certain kinds of reliance on foreign practices, finds it proper to ... consider foreign practices in some situations.”

Kagan made her comments on the relevance of foreign law specifically from the “perspective of an advocate,” not the “perspective of a judge.” The Kagan statement the Times referenced -- from Kagan's solicitor general confirmation hearings -- specifically addressed the “perspective of an advocate,” not the “perspective of a judge,” as Kagan made clear at the time. Kagan also explained when an advocate's foreign law argument would be relevant and when it would not -- the Times cited the former explanation, but not the latter. From Sen. Arlen Specter's written questions for Kagan:

Constitutional and Statutory Interpretation

3. In your view, is it ever proper for judges to rely on contemporary foreign or international laws or decisions in determining the meaning of provisions of the Constitution?

a. If so, under what circumstances would you consider foreign law when interpreting the Constitution?

b. Would you consider foreign law when interpreting the Eighth Amendment? Other amendments?

c. Would you ever give weight to other nations' restrictions on gun rights when interpreting the Second Amendment?

Answer: This set of questions appears different when viewed from the perspective of an advocate than when viewed from the perspective of a judge. At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General's office should offer reasonable foreign law arguments to attract these Justices' support for the positions that the office is taking. Even the Justices most sympathetic to the use of foreign law would agree that the degree of its relevance depends on the constitutional provision at issue. A number of the Justices have considered foreign law in the Eighth Amendment context, where the Court's inquiry often focuses on “evolving standards of decency” and then on the level of consensus favoring or disfavoring certain practices. By contrast, none of the Justices relied on other nations' restrictions on gun rights in their opinions in District of Columbia v. Heller, 554 U.S. ___ (2008), and the grounded historical approach adopted in that case (and echoed even in the dissents) would grant no relevance to arguments from comparative law in defining the scope of the Second Amendment right.

In NH speech, Kagan didn't endorse international law as “supreme” over domestic law

Wash Times suggested Kagan's reference to “a transnational perspective” in NH speech could indicate she believes “international law is supreme over domestic law.” From the May 25 Washington Times editorial:

In a New Hampshire speech on Oct. 6, 2008, then-Dean Kagan referred to “a transnational perspective” as being “foundational” as “part of the core of legal thought and activity in this new century.” The academic jargon is instructive: “Transnationalism” is, in the words of radical State Department counsel Harold Koh, the idea that “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.” Another key supporter of transnationalism goes so far as to argue that “international law is supreme over domestic law.”

Senators must ask Ms. Kagan if that is what she means by “transnationalism” being “part of the core” of modern legal thought. If it is, or if it is anything close to it, then she should not be confirmed.

In NH speech, Kagan in no way suggested international law is “supreme” over domestic law. Kagan's October 6, 2008 speech explored “the attributes -- and goals -- of a great law school in the 21st century.” After discussing the changes she implemented to Harvard Law's first-year curriculum -- explaining that the newly-added “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” -- Kagan went on to put the curriculum reform “in real-world context.” Kagan said: “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.” From Kagan's 2008 speech:

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.