LESSON 1: INTRODUCTION
1.1 General Introduction
1.1.2 Structure of Course 1
Annotated Lecture Transcript
In this first course, I’ll be starting you off with the basics, walking you through all the sources of law governing U.S. intelligence agencies generally.
Understanding this framework is critical to understanding the substantive legal rules we’ll be discussing in all future courses on IntelligenceLaw.com.
The lectures in this first course are structured around the 3 types of law in the federal legal system of the United States:
1) Constitutional Law;
2) Statutory Law; and
3) Administrative Law.
Each of these 3 categories includes two basic components:
1) The first is “blackletter” legal rules; and
2) The second is any holdings in federal judicial decisions interpreting those blackletter provisions.
Constitutional law, for example, is made up of the blackletter provisions of the U.S. Constitution itself plus any binding judicial decisions interpreting those provisions.
I’ll talk about this more in a minute.
This introductory course is broken down into 7 lessons.
Ø This first lesson—Lesson 1—is just a general introduction to the course.
Ø Lesson 2 gives a basic overview of federal law in the United States.
Ø Lessons 3, 4, and 5 are the biggies.
o They cover each of the 3 categories of primary legal authority individually in order of priority:
§ Lesson 3 covers constitutional law;
§ Lesson 4 covers statutory law; and
§ Lesson 5 covers administrative law.
Ø Once we’ve finished these 3 lessons covering the 3 basic categories of law, Lesson 6 explains the role of federal courts and the hierarchy of legal sources.
o This includes things like which law prevails in the event of a conflict between two different sources of law.
Ø And the last lesson, Lesson 7, just wraps up the course.
Just 7 lessons.
And this first lesson is just a short introduction.
The last lesson is a short conclusion, so there are really only 5 main lessons in the course—Lessons 2-6.
This course is going to fly by.
 PROFESSOR NOTE:
Code-Centric Pedagogy used in U.S. Intelligence Law: A Comprehensive Multimedia Introduction
One of the shortcomings of traditional American legal education is the focus on case law throughout all three years of juris doctorate training. The case method teaches students the law by having them read judicial opinions and extract scant legal holdings out of thousands of pages of inessential factual discussions and associated obiter dicta. Admittedly, this is an excellent way to make students aware of how judges apply the law to facts to resolve legal disputes in practice. In addition, it gives students a chance to learn all of the particularities of common law that are still relevant to one’s understanding of state-level legal topics such as contracts, property, torts, criminal law, etc. The case method is therefore a very appropriate method of instruction for the first one or two years of law school. The problem is that today most legal areas are not governed by common law, and the vast majority of legal practice is governed by statutory or administrative law.
The case method is used by virtually all law schools in the United States. This case-centric pedagogy is great at teaching legal reasoning and advocacy skills, but it is largely ineffective at teaching students about statutes and regulations. American law students might spend an entire week dissecting one legal opinion the bulk of which is filled with inessential dicta and maybe one or two sentences containing the central holdings that set forth the resulting legal rule. When these opinions deal with statutory law, then the holdings represent binding interpretations that sometimes apply to only one sentence of one statute in the entire U.S. Code.
Learning statutory law via the case method would be an inefficient means of achieving a comprehensive grasp of all the primary legal authority governing a topic area as broad as U.S. intelligence law. One would need to devote many decades of intense study simply to gain even the most rudimentary understanding of a statutory field using the case method; and even still, their understanding would be limited to only the small number of sections of the statutory framework that had actually been the subject of litigation resulting in published judicial decisions. In an area like U.S. intelligence law, where judges rarely agree to hear cases, a case-centric approach to study would leave even the most diligent student utterly clueless about the bulk of primary legal authority controlling the field.
Since this series of courses on U.S. intelligence law is intended to be comprehensive, I focus primarily on explaining the blackletter law composing the legal framework. While it can be far more time consuming and sometimes tedious, I find that this to be the best way to prepare students for legal practice in the intelligence field. The courses in this series are designed to have students engage the primary legal framework directly by studying the blackletter legal rules governing intelligence agency operations while fleshing out that understanding with an examination of judicial decisions and secondary sources as needed. My code-centric pedagogy is focused primarily on blackletter primary authority, whereas traditional case-method courses focus primarily on judicial opinions that are filled largely with extraneous dicta.
Given the growing dominance of statutory and administrative law in both federal and state legal systems, many law schools are beginning to modify their curricula. Washington and Lee University School of Law in Virginia, for example, has been teaching administrative law as a first year course for nearly three decades. Other prominent law schools are beginning to take similar steps. In September 2006, Harvard Law School began offering a first-year course on “Legislation and Regulation” in order to modify first-year legal education so as to recognize the centrality of statutes and regulations in federal and state legal systems and to bring the first-year curriculum in line with “the realities of modern legal practice.” See generally John F. Manning & Matthew C. Stephenson, Legislation and Regulation: Cases and Materials, Preface pg. v. (2010).
 PROFESSOR NOTE: I use the term “blackletter law” here in an unconventional way. The traditional definition of “blackletter law” in common law systems refers to a type of secondary authority found in treatise or restatement. The “blackletter law” in such secondary sources is a concise restatement of a common law legal principle distilled from binding precedents established in the most important cases deciding the issue. That’s not what I mean when I talk about “blackletter law” in this course. When I use the term, “blackletter law” I simply mean the raw text of a primary legal rule without any embellishments or analysis. The text of a statute or administrative rule provision would qualify as “blackletter law” under this definition. A provision of the U.S. Constitution would also be referred to as a “blackletter” legal rule. Any raw statement of a legal rule qualifies under the definition used in these courses.
Some jurists refer to all such primary law codifications as “statutes” or “statute law.” This is not incorrect usage of the term. I have decided to use the term “blackletter” law to describe the raw text of codified legal authority to avoid confusion when explaining administrative rules to students. I find that referring to administrative issuances as “statutes” or “statute law” can confuse the distinction between legislation enacted by Congress and regulations promulgated by agencies. Understanding the distinction between these two sources is critical to understanding the legal force and effect given to different source of primary legal authority. I purposefully selected terminology designed to keep these concepts separare and compartmentalized in the minds of students, who may be learning the law for the first time.