If your field is anything like mine (Criminal Law, Criminal Procedure, Federal Courts, etc.) there are certain doctrines that you’re compelled to teach that simply seem wrong. I’m talking here not about a case or two that you disagree with, but an entire line of cases that frustrate you to teach. They’re doctrines that you can’t explain to lay people; that the students rebel against; that you can’t make an argument for with a straight face.
Some of these mistakes get remedied relatively quickly by courts while some of them persist for years. For example, one of the embarrassments for many years in Criminal Law was the fact that sentencing judges were able to consider conduct of which the defendant had not been convicted, even conduct of which the defendant was acquitted, when determining the appropriate sentence. The Supreme Court remedied this (more or less) in its decisions
Comments
I think it’s most helpful when professors go through (a) the actual rule, (b) why the rule’s supporters back it, and (c) with those caveats, goes on to explain why the rule doesn’t make sense. It avoids the confusion over ‘what is the actual rule?’ that you get otherwise, and it’s helpful to see how a expert on the issue works through a tough question.
Posted by: Anonymous Student | Jun 8, 2008 2:42:15 PM
“After you read my article, maybe then you can teach these cases more easily now.”
Oh, snap!
Posted by: malady | Jun 7, 2008 1:58:04 AM
Sam,
Fortunately, I have just posted my draft article explaining why Smith v. Maryland and United States v Miller were correctly decided and why I think your understanding is incorrect. The article is The Case for the Third Party Doctrine, forthcoming in the Michigan Law Review. After you read my article, maybe then you can teach these cases more easily now.
Posted by: Orin Kerr | Jun 6, 2008 11:52:47 PM
Do you always have to espouse the law you’re teaching? I’ve seen political science, philosophy, theology teachers expound on views that they, themselves, do not hold. Sometimes they don’t make a secret of it, but shouldn’t a teacher still be able to give a good exposition of an idea? Maybe there’s a difference between law and these other subjects, which we can approach in a more analytical, even anthropological approach, even for branches like ethics, which are no less “normative” than law (“Now let us turn to the tribe known as the Rule Utilitarians. This curious people believes that…”).
Not to get sidetracked, btw, but courts still consider uncharged, and sometimes acquitted, conduct in sentencing. See, e.g., United States v. Lindsey, 482 F.3d 1285 (11th Cir. 2007); United States v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006); United States v. Rashaw, 170 Fed. Appx. 986 (8th Cir. 2006); United States v. Valdez, 453 F.3d 252 (5th Cir. 2006); United States v. Johnson, 444 F.3d 1026 (9th Cir. 2006); United States v. Welch, 429 F.3d 702 (7th Cir. 2005); United States v. Williams, 399 F.3d 450 (2d Cir.2005). Of course, with the guidelines “effectively advisory,” it’s not quite as unconstitutional as it once was.
Posted by: Andrew Carlon | Jun 6, 2008 11:45:25 PM