Teaching Introduction to Capital Lawyering

ABRAHAM LINCOLN EXHIBITS

By Chris Micheli

As part of its Capital Lawyering Program, the University of the Pacific, McGeorge School of Law offers several courses to develop the capital lawyer. There is one mandatory course, which is titled, “Introduction to Capital Lawyering” (ICL). This course is taught in downtown Sacramento, as well as on the law school campus, as this provides students with the feel of the practice of capital lawyering.

The ICL course runs 14 consecutive weeks and meets once per week for 2 hours. It is open to day and evening students, as well as those in McGeorge’s Master of Science in Law (MSL) program. This course is geared to giving students the proverbial “30,000-foot level” review of the three levels of government and the three branches of government, with particular emphasis on California state government.

The objective of the course is to ensure that students are aware of the different forums and avenues to address a client’s legal issue, whether the capital lawyer works inside or outside of government. In this way, students will be well positioned to develop a winning strategy to ensure the client’s issue is properly and efficiently addressed in the most appropriate venue.

This course introduces students to the lawyer’s role in developing, modifying, implementing, advocating, and influencing public policy, including: legislation, regulations, executive orders, court orders, and other policy edicts at the national, state, and local levels.

Students learn how to do policy analysis; learn the essential organization and procedures of the various policymaking venues; are able to consider and weigh strategic implications associated with the various venues and processes; conduct research using a variety of sources unique to policymaking in California and other settings; learn and develop skills for advocacy, negotiation and compromise in a policymaking setting; and, practice applying course knowledge and skills to important public policy matters of the day.

Learning Objectives

The primary learning objective of this course is to introduce and acquaint students with the fundamental knowledge and skills that are essential to lawyering in connection with California state government and with government in general. Upon successful completion of this course, students should possess the following knowledge and skills essential to lawyering in government settings:

  • Students will be able to perform policy analysis using a variety of methodologies that are the problem-solving rubric in the capital and other policymaking settings. 
  • Students will be able to consider and weigh the various venues for proceeding with a particular policy change and will be able to make decisions regarding the venue which provides the greatest strategic advantages and chances for success.
  • Students will be able to apply advocacy, negotiation and compromise skills that are both necessary and common in policymaking settings, including bilateral and multilateral negotiation, win/lose and win/win negotiation techniques, and methods for achieving compromise.
  • Students will be able to apply course knowledge and skills to address current public policy problems that confront California, the nation as a whole, and local communities.  

While the primary focus of the course is devoted to the lawyer’s role in the context of California state government, policymaking venues and processes at the federal and local government levels in California are also addressed. This is because California state government does not operate in a vacuum. Federal laws, programs and funding decisions are implemented by the state and have a huge effect on the state and its local communities.

In addition, the state does not have exclusive control of the policymaking agenda. The federal government and California’s local governments are regularly considering and adopting policies that are of concern to those working with state government. As a result, a capital lawyer must also be able to work with other policymaking venues.

The secondary learning objective of the course is to enable students to make more informed decisions regarding not only their areas of interest and course choices in the Capital Lawyering Program, but also the diverse array of employment opportunities that exist in connection with California state government and government practice generally.

Preparing Students for Capital Lawyering Careers

With the foundation provided by this course, as well as the other Capital Lawyering Program courses offered at McGeorge School of Law, students will be equipped to pursue their specific employment interests through a range of elective courses designed to prepare students to work in an extensive and diverse array of positions in and around California state government. This course and the Capital Lawyering Program are intended to provide essential preparation for:

  • Working in the California Legislature as committee consultants, staff to legislative leaders and members, staff to party caucuses, or other legislative support agencies such as the Legislative Counsel;
  • Working for the Governor in such areas as legal affairs, legislative affairs or appointments;
  • Working in state agencies as attorneys, legislative advocates, administrative law judges, enforcement officers, and other positions;
  • Working for businesses and nonprofit organizations that seek to influence policy on legislative and regulatory matters;
  • Working for private law firms that specialize in political and government law; and,
  • Working for lobbying firms that are retained to influence policy on both legislative and regulatory matters.

Course Materials

This course does not use a standard textbook. Instead, it uses a Reader entitled Introduction to Capital Lawyering, which was written by Professor Thomas J. Nussbaum with supplemental materials provided by other adjunct professors. The Reader provides students with the essential background to participate in class discussions and consider the case studies that will be used during the semester.

Exams

There is a graded mid-term exam worth 30% of the final grade, as well as a final exam at the end of the course, which is also worth 30% of the student’s final grade. Each exam covers half of the course. The exams consist of multiple choice, true/false and short essay questions. The mid-term is given in the second hour of the seventh class, and lasts one hour. The final exam is given during “exam week” after the conclusion of classes and lasts 90 minutes.

In terms of assessing the students’ knowledge of the course materials and their ability to apply the information covered during class sessions, the exams test the student’s recall of critical information through testing, as well as application of the information in their short essay questions. The multiple choice and true/false questions are relatively straight forward and come directly from the class readings and are covered a second time during class discussions. The short essay questions are intended to test the students’ writing ability and applying the information they have reviewed in class sessions.

Written Project

Each student completes a written project for the class that involves working on an actual, current public policy problem facing California or the nation. The project is worth 40% of the final grade. Students submit a final paper for addressing the public policy problem. This paper is due prior to the final class.

The written paper must formally apply a policy analysis methodology and demonstrate knowledge and skills acquired from the course. The first step in completing the written paper is to select the current public policy problem by the third-class session. This step involves consultation with the professor. While the professor provides a list of potential topics, that list is not exclusive and the problem statements are not precisely framed in the same manner as the student will do in his or her project paper.

Students are free to propose other topics or rephrase those that have been suggested by the professor. The professor provides feedback, approval or further direction. In the final paper, students are expected to explain in detail the components of his or her proposal, applying what they have learned from further research and analysis of the public policy problem. In addition, the final paper should reflect knowledge and skills acquired from the course. Use of footnotes or endnotes is required to provide authority/reference/support for the policy analysis.

Students are provided evaluation criteria for their written projects at the start of the course so that they understand what is expected and how they will be graded. There are four major areas that are reviewed:

Thoroughness and quality of research – The professor is evaluating the extent to which the student became informed about the public policy problem, the various alternatives to addressing the problem, the views of the key parties of interest, and other relevant points. In addition, the professor is evaluating the degree to which the student used an extensive and diverse array of research materials to support his or her analysis, including footnotes or endnotes to provide reference, authority and support for assertions made in the paper.

Application of methodology – The professor is evaluating the extent to which the student correctly applied a policy analysis and development methodology in putting together the paper.

Quality of analysis – The professor is evaluating the extent to which the student did a sophisticated policy analysis of the problem. The professor wants to see the student go beyond a rigid and mechanical application of the policy analysis methodology. The professor is looking for the student to identify and focus on the most crucial or pivotal aspects of the policy issue he or she is addressing.

Quality of writing – The professor is evaluating the extent to which the student’s paper is well organized, readable and well written.  Proper grammar, usage and mechanics enhance a policy analysis; whereas, improper grammar, usage and mechanics detract from an analysis.

Class Participation

Attendance and class participation are an integral part of this course in order to facilitate learning by the students. Regardless of whether there is a small number of students in a seminar room or a large classroom filled dozens of students, the quality and quantity of student participation is necessary for success in a course such as this.

Through the professor’s use of the Socratic Method of teaching, sharing perspectives among participating students, and class discussions on various public policy issues, students will be called upon to apply their knowledge and utilize their critical thinking and analysis skills. There are numerous opportunities to engage in these interactive discussions, and the professor assesses the student’s ability to apply knowledge and critical thinking skills to perform competent legal analysis, reasoning and problem solving.

The professor will also assess the student’s ability to identify and understand key concepts in substantive law, legal theory and procedure that are reviewed and discussed in the readings and class sessions.  Finally, the professor will assess the student’s communication skills, including effective listening and critical reading, as well as interpersonal speech and oral advocacy.

Overview of Weekly Class Sessions

The first class, as one would expect, begins with an introduction and overview of the course, review of the class syllabus and Reader, course expectations, the written project and two exams, discussion of McGeorge’s Capital Lawyering Program, and getting into the course materials on policy analysis. Policy analysis is a core function and skill necessary for successful work as a capital lawyer. According to Professor Nussbaum, “Policy analysis is the rubric for problem-solving that is typically applied in policymaking settings.”

The second class continues with policy analysis and students become familiar with and practice various policy analysis methodologies. It is important for students to understand the difference between policy analysis and policy development, and the different methodologies addressed in the assigned readings. The goal is to have students be able to do a simple policy analysis using one of the methodologies addressed in the assigned readings.

The third class focuses on applying policy analyses to “real world” issues that are especially relevant and important for attorneys who work in or in connection with California state government. This class focuses on the national issue of illegal immigration and the state issue of public pensions. Students are expected to demonstrate the ability to do policy analysis regarding these two issues. The goal is for students to work with classmates and the professor in an attempt to reach consensus on how the various problems could be addressed by California and the federal government.

At the fourth class, we focus on the public health problem of obesity as a means of exploring how public policy matters can be addressed through a wide variety of venues (by legislative bodies such as the California Legislature or the U.S. Congress; by California or federal regulatory agencies; by local government agencies such as cities, counties, or school districts; by the initiative process, or by the courts). Students are expected to understand and be able to describe how problems can be addressed through a wide variety of public policy venues and processes and be able to perform a policy analysis using the “Methodology for Policy Analysis and Development: Addressing a Cluster of Related Problems”.

The fifth class is the first of four sessions devoted to the venues for lawyering in California state government. In these four sessions, we focus on the California Legislature, the executive branch and Governor, the role of state agencies, the initiative process, and the role of our state courts in making policy. For this session, the focus is on the California Legislature.

The sixth class is the second of four sessions devoted to the venues for lawyering in California state government.  For this session, the focus is on the executive branch of California state government, especially the role of the Governor in the state’s lawmaking and budget processes.  Topics include an overview of the executive branch of state government, how the Governor is involved in the legislative process, how the Governor is involved in the budget process, how the Governor makes policy via executive orders, and how the Governor directs and influences state agencies.

The seventh class is the third of four sessions devoted to the venues for lawyering in California state government.  For this session, the focus is on California state agencies. Topics include: the array of state agencies in California government, the rules and procedures that govern the adoption of regulations by state agencies, the open meeting laws that apply to California state agencies, and the role of state agencies in carrying out statutory responsibilities that are established through the legislative process.

The eighth class is the last of four sessions devoted to lawyering in California state government.  For this session, the focus is on California’s initiative process and the role of the state courts in policy development. Topics include the legal requirements and procedures for initiatives, key research tools regarding initiatives, analysis of recent trends, strategic considerations, upcoming ballot measures, and how state courts get involved in setting policy.

The ninth class is the first of two sessions devoted to lawyering with the federal government.  This session focuses on Congress and the topics include the organization of the legislative branch, the legislative process, the committee system, the roles and influence of political parties, the role and influence of interest groups, key procedural and voting requirements, and research regarding federal legislation. The objective for students is to understand the basic and essential aspects of Congress.

The tenth class is the second of two sessions devoted to policy development and lawyering in the federal government.  For this session, we focus on the President’s role in the legislative and budget processes; the executive branch of the federal government; the President’s power to issue executive orders; processes for rulemaking/regulation by federal agencies; research regarding federal agencies, regulations and policy issues; and, the role of the federal courts in making public policy.

The eleventh class is devoted to lawyering in local government in California. Topics include the broad variety of local government entities, state statutory and constitutional provisions that govern their activities (including open meeting laws) or limit their authority, and the types of policy matters typically within the regulatory purview of local agencies. The objective is for students to have a basic understanding of the broad variety of local government agencies in California, including the laws that govern their operations and the subject matters within their regulatory purview.

The twelfth class is devoted to an analysis of the various forces and constraints that make public policy development increasingly difficult not only in California, but also at the federal level. Many analysts have concluded that current-day policy development is “gridlocked.”  As such, any capital lawyer attempting to make or influence policy at the California or federal levels should have a working knowledge of these forces and constraints, including what has been done or could be done to address them.

The thirteenth class is focused on advocacy, negotiation and compromise in policymaking settings. Advocacy, negotiation and compromise are involved at all levels of the policymaking process, and any capital lawyer attempting to make or influence policy must have a working knowledge of and basic skills in advocacy, negotiation, negotiation techniques, and methods for achieving compromise.

The fourteenth class is the final session devoted to subject matter areas that are especially relevant and important for capital lawyers who work in and around California state government – the State Budget. Students are expected to become familiar with the timeline and process for the State Budget. The objective for students is to gain a basic understanding of the California Budget including timeline, process, organization, historical trends, and how the State Budget affects virtually every state and local agency of government. In addition to reviewing broad issues such as taxes, spending and government services, students also evaluate proposals for reform.

Conclusion

The ICL course is designed to provide exposure to capital lawyering in general while educating students about the levels and branches of our government so that they understand that government may provide an avenue to resolve a client’s legal problem beyond traditional litigation or alternative dispute resolution. Being aware of these different avenues to address client’s issues will be invaluable to students as they enter the legal profession.

The students will know that changing the law may be the best approach to solving a legal issue rather than litigating it. Students will also be aware that executive branch agencies and departments play a critical role in the lives of legal clients as our legal system has become one based more on statutes and regulations than case law to address the roles and responsibilities of individuals and businesses in our state.

Chris Micheli is an attorney and legislative advocate for the Sacramento governmental relations firm of Aprea & Micheli, Inc. He serves as an Adjunct Professor at McGeorge School of Law.

 

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