Beck's falsehood: Kagan “decided to take the Harvard Law program and move it now from case study to global law”

Gray adds: “Case law wasn't good enough in America. We had to check out what's the globe doing.” On the June 28 edition of his radio program, Beck claimed that Kagan “decided to take the Harvard Law program and move it now from case study to global law” during her tenure as dean of Harvard Law School. After stating that progressives at Harvard in the 1920s decided “that we were going to stop studying the U.S. Constitution and the Constitutional Convention and the words of our Founders” and “instead we were going to go for case law,” Beck stated:

BECK: Now, Kagan is going to be our next Supreme Court. They say that she's just too boring for any kind of scandal and so that's why the media's not -- she's just so boring. Really? Is that why the media's not saying anything about her? She's boring? I have a feeling how -- we're going to find out how exciting she really is after she gets the nomination. I have a feeling she's going to be really super not boring soon.

Elena Kagan was the one who decided to take the Harvard Law program and move it now from case study to global law. So now our attorneys are going to be studying about what the precedent is in the globe and international community.

PAT GRAY (co-host): That was really cool 'cause first it started with constitutional, you know, interpretation, then it went to case law, then case law wasn't good enough in America. We had to check out what's the globe doing. What are they doing in --

BECK: And that's her. That's her at Harvard University.

Kagan did not eliminate traditional courses. In an October 6, 2008, speech about “the attributes -- and goals -- of a great law school in the 21st century,” Kagan explained that changes to Harvard Law's first-year classes supplemented but did not eliminate “traditional first-year curriculum.” From the speech:

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.

The 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).”

The courses added were designed to improve upper-level learning in constitutional law and other areas. According to Kagan, the addition of a “Legislation and Regulation” requirement to first-year law courses, 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.

Supreme Court justices consider foreign practices in some situations. The Supreme Court has a history of citing decisions by foreign courts in its 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.