In a post on the mandate oral arguments, Orin Kerr writes: “Purely from the perspective of a legal nerd, what fun to live in such interesting times. Those of us who follow the Supreme Court and teach or write in areas of public law are always dependent on what the Court does. If the Court does boring and expected things, then following the Court can be a bit routine. But this Term the Court has been pretty darn exciting to watch. Whatever you think of the umpire, the game sure is entertaining.”
From a legal nerd perspective I can appreciate what Orin is saying. From a teacher’s perspective, though, the challenges are more difficult. Two major teaching areas for con law teachers and students are up for grabs in the next year: the Commerce Clause and affirmative action. As I’ve written here before, I made the healthcare litigation a central piece of my con law class this year, starting on the very first day when, instead of reading Marbury, we read a series of excerpts from the lower court healthcare decisions and briefs (prepared by Marty Lederman, to whom I’m very grateful). The benefits in terms of class discussion and a sense of the continuing relevance of the materials we’re studying were great, if time-consuming; I find myself rushing in an unseemly fashion through separation of powers and due process to catch up.
But many con law students, especially first-years, also crave a certain amount of certainty and clarity, and especially a set of tests that they can apply more or less mechanically on exams. And many law professors feel most comfortable with a narrative arc in their classes, either overall or for particular areas. Just about everyone who attended law school prior to 1995 had a standard Commerce Clause narrative, for instance, under which history more or less stopped around the mid-40s. Between 1995 and 2006, they eventually came up with another one–the “federalist revival” narrative. After Raich, yet another one took its place. Similarly, what looked like a determinate test–with prongs and everything!–developed after Lopez and Morrison, and it has been taught and applied on exams for the last half-generation. The same kind of phenomenon developed with affirmative action after Grutter and Gratz. These things are all on the table right now. Granted that these classes are more exciting to teach right now, but how should we teach them?
The problem for students is twofold. First, as I said above, the current unsettled state makes it harder for students to come up with the clear workable tests they crave, and get (or seem to get) in other courses. Even that commonplace liferaft for con law students, the Chemerinsky treatise, is currently out of date (and, although an excellent book, sufficiently strong in its own orientation that it may further hamper students’ efforts to learn from it in an atmosphere of flux). Second, it can encourage a great deal of cynicism. Now, a good deal of skepticism is perfectly appropriate in con law. But from my perspective, if it happens too soon the whole experience can curdle from the start and hamper genuine learning.
I have no particular answers to those questions, and welcome other commenters’ views. I will say three things. First, my emphasis in con law is always not on what the rules are as such, but on how to engage in constitutional argument that won’t get you laughed out of court, ie. how to use the basic modalities of constitutional argument described by Bobbitt and others; in back of this is a substantial amount of discussion about the role of courts, questions of judicially manageable tests a la Fallon, and so on. Given all the shifting currents, it may be that the best thing to do is simply to teach the students how to swim.
Second and relatedly, although con law has always been the first-year course least likely to lend itself to “practical” training, perhaps this state of flux should encourage rather than discourage us from doing more skills-based training. Perhaps con law courses should become less focused on constitutional law or constitutional theory, and more focused on constitutional litigation, complete with better use of materials such as pleadings, briefs, oral arguments, and lower court decisions. Some of those have made their way into my class this year, but I think I could do more. Again, I’m happy to hear from others about whether and how they have successfully integrated more skills training into their con law classes. Even if most students won’t practice constitutional law, we could still use the course as a window into lawyering in general, and some of the lessons–about choosing your plaintiffs, framing your arguments (ie., I always make a big deal in the Commerce Clause about how you describe the “regulated activity”), and so on. Speaking for myself, I ought to do more with both facial vs. as-applied challenges and with the question of constitutional remedies.
Third, teaching con law in a time of flux also tells us something about teaching con law in a time of relative stability, and perhaps about the lifecycle of constitutional law teachers. I’ve been teaching since 2003, and for the first several years I taught the Lopez/Morrison “test” as if it were just that. The students appreciated it, and it made my job grading exams easier. But the more I teach this material, the less I emphasize the “testness” of it, because I think it strains credulity to think of it as a neat and clean test. The same is true in other areas: we give students six “factors” for political questions, and a “congruence and proportionality” test for section five of the Fourteenth Amendment, but if we overemphasize the testness of these cases and underemphasize the judgment calls involved and the ways in which they’re really just proxies for statements about vague and shifting levels of skepticism on judicial review, the more we end up giving students more guidance than the caselaw can really justify. (Similarly, I have seen some scholars describing Comstock as giving us a five-part test for application of the Necessary & Proper power. That seems absurdly mechanical to me.) As for modern substantive due process, forget about it; as interesting as the material is, I’m increasingly convinced that its lack of intellectual coherence doesn’t justify spending very much time on it at all. The longer I teach this material, the more I feel a tension between satisfying my students’ desire for clarity, definition, and mechanical tests, and my own sense that it’s pedagogically dishonest to promise more than the Court has or can deliver. At this point, I would rather not pretend to them that any of the areas of the syllabus that are most often taught and studied give them clearly applicable tests. If the Court announced clear tests in both the mandate case and next year’s affirmative action case, I would still hesitate to give them a clear test or narrative. They’re better off understanding the basic grounds of contestation, the standard competing visions that frame these debates in the Court, than pretending that there are stable and helpful tests in this field. I wonder whether other con law teachers have followed this same path from innocence to experience in their own teaching careers–and, conversely, whether those who have been teaching for a while but still teach Lopez/Morrison as involving three “prongs” or five “factors” think this is really justifiable. I think my approach definitely increases my students’ uncertainty and tendency to despair–I know it has this year! But, I think, better honest despair than false certainty.
Posted by Paul Horwitz on March 28, 2012 at 08:41 AM
Comments
Great questions, Paul, and among those I’ve been asking myself. I have always started even course with Bobbitt–I even wrote up my own “Primer” on the modalities that is shorter and easier for 1Ls to grasp (shameless plug: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1849263)
I generally have used the Chemerinsky approach, basically because I think its good for bar prep, but at the same time actively asked students to evaluate the “areas of flux” along Bobbitt’s axes… I do this in virtually every class….
Posted by: Ian Bartrum | Mar 29, 2012 12:57:49 PM
Paul –
I think you hit the nail right on the head when you say the best thing to do is simply to teach the students how to swim. It’s such a cliche to say that law school teaches you to think like a lawyer, but I still believe that’s its most important function. I think the substance of any particular class is important more for just exposure’s sake so students know what issues are out there, rather than for knowing exactly how a court is going to resolve them. I practiced for several years before turning to teaching this year, and I don’t think I ever had an occasion in practice where I thought “I remember from my law school class ten years ago that the answer to this question is X,” (or even “I remember from law school that the Supreme Court applies Y test”). Indeed, the law may have changed significantly since law school. But I frequently encountered problems where I was able to identify what issues were potentially relevant and how to research and analyze those issues. That’s where my law school training was most valuable. I think your students are benefitted by learning broadly what issues are out there, and how to apply whatever the current analysis of those kinds of issues are in various contexts. The fact that some five-step test may later become a three-factor balancing doesn’t ultimately matter I think.
Posted by: Anon VAP | Mar 29, 2012 8:59:34 AM
I for one appreciate the very useful reminders from those who face these concerns all the time! It seems to me the best comparison is probably to civ pro rather than tax. Granted that one expects or hopes for some stability in the tax code, but one also expects at least some degree of ongoing revision; with civ pro, one usually expects it to remain much the same from year to year, unless one is teaching in, say, 1937.
To me, these comments more or less raise the question, why teach con law in the first year? If it were a statutory course, one would expect to have to adjust to changes, but at least one could teach first-years about basic lawyering skills relating to statutes. If we view con law as being more or less a common-law course, it would have that use as a course; but it’s subject to more frequent flux and less stable interpretive principles than most first-year common-law courses. Should it be saved for upper year study? Having taught it to both first-years and second-years at different times, I prefer teaching it in first year. But this is one of those years when it might have been better off as an upper-year course. That doesn’t mean I consider myself or my students basically “screwed,” but it does present some unusual challenges this year.
Posted by: Paul Horwitz | Mar 29, 2012 7:15:05 AM
This is my first time comment at your blog.Good recommended website
Posted by: term paper | Mar 29, 2012 5:54:55 AM
Yeah, tax profs are so much cooler.
They get angsty over whether something Congress said was a penalty but put in the tax code is a tax or penalty. Metaphysically speaking.
Posted by: Anonsters | Mar 28, 2012 5:59:09 PM
As a tax professor, I can’t help but snicker (good-naturedly) at the apparent angst caused by changes in constitutional law.
Posted by: andy | Mar 28, 2012 4:30:09 PM
While this didn’t have an impact on nearly as many profs as changes in Con Law or Civ Pro rules, consider the poor professor teaching Public Sector Labor Law. I’m teaching that class this spring, and I put some emphasis on Ohio law, as that’s where I teach. Until early November, it wasn’t clear whether the Ohio state law I’ve been teaching for a decade-plus would be reinstated, or whether I would have to try to learn and teach a new, radically different version (SB-5) enacted in early 2012. Not to mention the big changes in public sector labor statutes in Wisconsin, and about ten other states. Good times. . . .
Posted by: Joseph Slater | Mar 28, 2012 3:53:19 PM
I think you’re basically screwed. I was in CivPro the fall semester after Twombly came down. The professor was refreshingly honest with us (of course, my CivPro professor was perhaps the most grounded professor I had: not your standard head-in-the-clouds law prof); she basically said, “Well, we have this new decision. I’ll tell you about it, but we don’t know what it means yet. It may change everything I taught you (about notice pleading and 12b6) this semester. Or not. Be alert for new developments.” As helpful as that kind of disclaimer was, at least in vividly illustrating how law can change at any moment at the whim of the Great High Court, it basically leaves the student screwed, because what you learn is no longer applicable. So it’s kind of like studying the rules of procedure prior to the FRCP. While interesting as an historical matter (and just interesting in itself), it would be kind of silly to study pre-FRCP procedure in order to learn about procedure as it applies in courts today. It felt the same way when living through an alteration in a basic part of CivPro as a student.
Posted by: Anonsters | Mar 28, 2012 12:50:26 PM
Thanks for the comment, Orin. I think there’s a connection but that they’re not quite the same thing. Sometimes the question is not what the sources for the decision are, but whether there’s a rule at all and how mechanically it’s applied. I could imagine a clear rule — don’t drive at an unreasonable speed on this highway, or proximate cause is needed to succeed in a tort claim — that students could write down and try to apply on an exam, relying on legal sources and not worrying explicitly about the judges’ politics or breakfast menu, although we could then debate what goes into calling something proximate cause or an unreasonable speed. The problem, for me, in teaching something like Lopez and Morrison, is that there’s a tendency for students (and some professors, I expect) to teach a “test” like that as if it offers a more or less clear set of categories, prongs, and so on to apply in a reasonably mechanical fashion, but the application in my view is far messier than that. That’s so even if I’m not being terribly Realist about what’s driving the decisions. Same with Comstock: because the Court identifies five factors that are relevant to the decision, I’ve seen some scholarship describing it as giving a “five-part test,” which I don’t think is an accurate description. So, even if I believe that lawyerly craft values are real and so on, I still find myself resisting teaching the materials as if they present clear “tests,” even though students prefer them.
I did get an interesting email from another con law professor suggesting that the best way to deal with this is to get students to think in terms of how lower courts will try to apply these decisions. That’s a fair point, and I want to throw it out there for purposes of discussion, although it still seems to me that while some courts do try to use what the Supreme Court has given them in a fairly mechanical way, and (more or less) reasonably so given their particular role in the system, those attempts often get the words but miss the music.
Posted by: Paul Horwitz | Mar 28, 2012 12:36:32 PM
Excellent questions, Paul. This strikes me as the formalist/realist divide: Is the law the formal test, or is the law what the courts actually do?
Posted by: Orin Kerr | Mar 28, 2012 12:17:08 PM