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Brodhead in the Law Classroom

President joins law dean and faculty member Jed Purdy in teaching 'Faces of the Law'

Part of the A New Type of Classroom Series
President Richard H. Brodhead addresses students in the Duke Law class. Photo by Megan Morr/Duke University Photography
President Richard H. Brodhead addresses students in the Duke Law class. Photo by Megan Morr/Duke University Photography

Thirteen Duke Law students have had the opportunity during
the fall 2011 semester to take a class led by an unusual teaching trio:
Professor Jedediah Purdy, Law School Dean David Levi, and University President
Richard Brodhead.

The class, "Faces of the Law," is an examination
of important American cases and law-related writings, explored within the context
of their times. The teachers, a quietly compelling scholar, a former federal
judge, and a longtime teacher of American literature with no legal background,
create their own curious context.

"We're different," Levi says, his succinct
statement mirroring the decisiveness that some students -- and the other
two-thirds of the Faces teaching team -- say he brings to the class.

Enthusiasm, experience, and synthesis

The difference was on display during a September class where
Marbury v. Madison and The Federalist Papers were among the readings. Brodhead
was more demonstrative than his co-teachers, gesturing and laughing, reading
passages aloud to emphasize their eloquence.

"He's as enthusiastic a person as I've come
across," Purdy says. "He's just alive with excitement about an idea,
or the structure of a piece of writing, and his MO is just to grab some phrase
and say 'I found this fascinating!' He'll read it and you feel the weight of
each word."

Brodhead's 32-year teaching career at Yale ended when he
became president at Duke in 2004. This is his first foray into legal teaching,
but his presence makes sense, given the focus of the class on the social and
cultural structure around important legal moments.

"My work has all been in American cultural
history," Brodhead says later in an interview about the class. "My
Ph.D. is in English but I've taught in an American studies program my whole
life. I suppose that if someone asked me about my hobby, I spend much of my
spare time reading around in the fields of American history and cultural
history.  I'm a novice to the legal
dimension, but that's all right -- I have a judge sitting next to me. But I do
know things about the different chapters of history."

The students and their instructors discuss the Constitution
both in its purely legal context, and as a very young document with a
legitimacy that the new country's citizens were willing into existence.

"Humans create institutions, but they're not
institutions on day one," Brodhead tells the class. "You have to act
as if they're real. It's like when you play a game:  you have to play by the rules you've invented as if they're
set in stone."

dean levi

Dean David Levi in class.  Photo by Megan Morr

The conversation focuses on the sources of the new
government's claim to legitimacy, and Levi delves into a topic he enjoys, the roots
of American jurisprudence in common law and natural law. He comments on the
readings for the day, but also draws from his memory to cite Supreme Court
cases he considers on point, and an opinion he wrote as a Supreme Court clerk.

"I feel like it's actually been a teaching inspiration
for me," Purdy later says. "They each have very, very different
teaching styles from mine, and each is very effective. I think David teaches
sort of like a scholar-judge. He has a really confident judgment about whether
a court is being responsible, whether it's making things up, whether it's being
cowardly. And it's not just an opinion, it's a grounded take."

Several students talked about the readings and about Levi
and Brodhead's respective statements before Purdy spoke, synthesizing the
opinions and applying them to the next portion of the discussion.

"This is the kind of class where you could talk for
hours, because the materials and the way we approach them really touch on
enormously substantial ideas," he says.

"I think it's right to say that Jed has the ability,
maybe more than anyone I've known, to summarize a person's or a group's salient
points," Levi said. "It really moves the class forward."

"I think they all complement each other nicely, and
sort of amplify each others' strengths," says Katie Ertmer '13. "One
of the things that attracted me to Duke was Dean Levi, because I thought his
background probably meant he understood the law from a different perspective
than many other law school deans. So I was excited to take a class with him,
and he definitely brings all that courtroom experience to class. I felt like
these teachers and this material could be a great combination, and it has
exceeded my expectations."

Class built on legal legacy, lasting relationships

The class is the result of the relationships the three
professors have with each other, and with a class taught in the past by Dean
Levi's father at the University of Chicago School of Law; the late Edward H.
Levi served as law dean at Chicago, and subsequently as that institution's
provost and president before his appointment by President Gerald Ford to the
office of U.S. Attorney General.

"The genesis goes back to a conversation I had with Jed
a year and a half ago," Levi says. "He'd been out at Stanford and
seen the Dean there who is a friend of mine. That dean, Larry Kramer, was my
father's research assistant at the University of Chicago, and my father taught
the Elements of Law course at Chicago, which is a famous course for first year
students. Larry and I had been planning to teach this kind of course at
Stanford. Larry told Jed that story, and Jed came to me and said 'This is very
much the kind of thing I'd like to be doing at the law school.'"

Brodhead, who says he spends more time on the class than he
thought he would be able to find, says Levi lured him in with a persuasive
argument.

"I asked David an obvious question: 'Why wouldn't I
teach a subject I actually know backwards and forwards?'" Brodhead
recalls. "David, intelligent man that he is, gave a killer reply. He said.
'You're always talking about how people should be stretching their knowledge
and crossing disciplines. Wouldn't it be more powerful for you to team-teach at
the law school than to teach a class in American literature?' Now that's a good
arguer."

Purdy and Brodhead also had a friendship stemming from a
time before either came to Duke.

"He was dean of the college at Yale when I was in law
school, and I was head teaching assistant for another quirky course,"
Purdy recalls. "It was a series of public lectures which doubled as a
class, and the head instructor, then the Dean of the law school, recruited as
lecturers prominent figures from across the school, including Dick Brodhead. As
a result, I had a seminar with him and he was amazing."

Brodhead admits to initial qualms over team teaching at Duke
Law: "I've team taught with people I greatly respect where I don't think
the whole was greater than the sum of the parts. But in this case, it's working
very well."

Law forged in three "extraordinary eras"

The reading list is inspired by, but not identical to, the
curriculum taught by Levi's father.

"We started with a set of materials that are very
jurisprudential, but we wanted to give the course greater focus," Levi
says. "We hit on the plan of focusing on three time periods: the founding
and the tradition that existed in American law prior to the founding; the civil
war and the struggle over slavery; and the New Deal and the legacy of the New
Deal period. What that means in practical terms is that we've looked at legal
concepts, cases, principles of justice during periods of extreme national
stress. That's the drama of it. All times have their challenges, but these were
extraordinary periods.

"When you read back thorough the materials regarding
the struggle over slavery, many of them speak to you right now," he adds.
"We're still very much living with the legacy of that period. The same
thing is true with the New Deal: look at contemporary debates over the role of
the federal government. These things don't go away. They're in our national
DNA, our legal DNA. Seeing how people of good will and bad will, people on the
winning and losing sides of history, thought about these things in a legal
framework is amazingly interesting."

Brodhead says the class plays to his teaching strengths, and
also to his interests.

Jed Purdy
Jed Purdy

"Very little of this class has turned on specifics of
the law," he says. "Every week we look at how some large social
question gets focused onto the structures of the law and how the law can be
used to solve the problem or, in some cases, deflect or postpone a solution of
the problem."

Purdy says he has found the combination of teachers with
diverse experience and a long view of legal issues in their cultural context
very fruitful.

"The materials serve to give the students a kind of
immersion in the way that the practice of the law and judging has been, among
other things, a running argument about the relationship between the law on the
one hand, and justice, or legitimacy, on the other hand. The materials convey a
sense that these aren't just philosophical questions for legal theorists, but
actually arise from the activity of law itself."

Thomas Dominic '12 says he took the class "because of
my desire to learn something about the background principles that inform our
current legal system."

"In the normal law curriculum we sometimes invoke the
philosophers and scholars who shaped our modern understanding of law, but we
never have the chance to confront them. I will take away from this class a
better understanding of the ways that our scholars, leaders, and judges have
woven concepts of natural law, justice, and liberty into the fabric of our
legal system."