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Wednesday, September 20, 2006

Why Do My Students Think Constitutional Law is Hard?

I imagine that one reason I have enjoyed studying, and now teaching, constitutional law is that I find it easier to think about the problems in that subject than in torts, civil procedure, antitrust, or what-have-you.  Thus, I am aware that my assessment of what subjects are "easy" -- let alone which ones are "fun" -- may not be representative of most students, lawyers, or faculty members.  Nevertheless, it continually astounds me to hear that students (at my school in particular) find constitutional law exceedingly difficult.

Most of the complaints, I think, center on the lack of hard-and-fast rules in the subject.  The indictment is true enough, I suppose, but I don't hear any great clamor for subjects like secured transactions and tax, which, on occasion, have "answers."  (I am told that in those subjects the students don't actually want to get the answers, but want to make policy arguments without reading the relevant statutes.)  More to my point, I fail to see how the squishiness of constitutional law is appreciably different from the flexibility in the application of tort doctrine, for example.  (What is a tort "duty"?  Is it different from "breach"?  When is causation "proximate" enough?)

In all legal subjects there is some base doctrine that students need to know, but at the margin there is room for argument about the application of that doctrine.  When do a company's contacts with a jurisdiction meet the "minimum" standard for personal jurisdiction?  Does D owe P a duty of care in a scenario not covered by binding precedent?  Does D have a "reasonable expectation of privacy" in a given area?  Is X a "fundamental right"?  Most of our time in law school is spent debating these gray areas of the law, and my experience was that this was the focus regardless of the title of the class.  Is there something about constitutional law in particular that scares students?

Posted by Michael Dimino on September 20, 2006 at 02:34 PM in Teaching Law | Permalink


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Further, I spend less time on that "half" of the course, so that might add to the difficulty. Why do you spend less time on structure than rights? If it's just because there's less material to teach, why would spending time commensurate with the demand of the material (even if it's less clock time) add to the difficulty?

Because I think the rights section is easier for the students, I typically cover that first, turning to federalism and separation of powers at the end.Doesn't that risk encouraging students to think of the Constitution as rights-oriented instead of structural? I would think that placing structure behind rights will tend to make students think of -- to borrow from what I'm told is Randy Barnett's argot, although don't hold me (or him) to that -- negative rights (i.e. prohibitions on government action) rather than structural provisions as the Constitution's primary safeguard of positive rights. That is to say, isn't there a risk that doing it that way will confirm the default assumption of students who've been raised in the mindset of the evolving constitution - precisely the mindset that, I had thought, we disagreed with?

Posted by: Simon | Mar 6, 2007 10:24:41 AM

My school currently teaches the course in a single semester, so I cannot speak directly to your question. I think my students find the structural elements of the course more difficult than the rights section, but that could be for several different reasons. They might find it less interesting, or less applicable to their lives. There are fewer cases in the separation of powers section, so the doctrine is particularly ambiguous. Further, I spend less time on that "half" of the course, so that might add to the difficulty. On the other hand, though, there are more likely to be "answers" in the federalism arena, though obviously there is much uncertainty there as well. Because I think the rights section is easier for the students, I typically cover that first, turning to federalism and separation of powers at the end.

Posted by: Mike Dimino | Mar 6, 2007 9:38:03 AM

Mike (and others) - my understanding is that several schools bifurcate conlaw into two classes, "structural" conlaw and "rights" conlaw, under one label or another (usually conlaw 1 and 2). Do you perceive any difference in how students find one class vs. the other? I have to admit that I find the rights-oriented material less interesting and exciting than the structural material, and I wonder how widely that view is shared.

Posted by: Simon | Mar 5, 2007 8:12:43 PM

To reiterate the thoughts of Dave, and as a 1L in the trenches of con law right now, I think that the subject gets a bad rap because of the exceedingly and unnecessarily dense writing of the Supreme Court Justices. Con law comes as a first year course in nearly every law school in America and the cases read for all other subjects pale in comparison to the difficulty of trudging through Supreme Court opinions. Con law is despised by students simply because to actually learn the material they must be much more dedicated and attentive while reading. I can breeze through fifty pages for torts in a fraction of the time I spend on the same amount of reading for con law. Students don't like it because it eats up valuable time and often is not any clearer after all that time spent. I love the subject by hate the reading.

Posted by: Christian | Mar 5, 2007 2:24:31 AM

Perhaps students don't find Constitutional Law so much hard, but boring and irrelevant. Constitutional Law appears to the uninitiated as judge made law that may not affect the average law student. I could see someone not interested in policy, history, debates over interpretation, and politics tuning out Constitutional Law. Then the question becomes, how does such a person end up in law school?

Posted by: Shubha Ghosh | Sep 23, 2006 1:09:22 PM

Constitutional law is difficult because, to borrow Prof. Adam Pritchard's characterization, "it teaches law students that the law doesn't matter." In a Secured Transactions class, the first (and perhaps only) place to look for a rule is the statute's text. In constitutional law, the last thing one is supposed to look at is the text.

Without getting into the debate of whether such theories are good, in most classes, one would not get away with coming up with theories of 'substantive' due process and the like-- if one tried such a strained method of interpretation in e.g. the tax code, he'd probably be laughed at. Yet, in conlaw, we are told that not only is that type of analysis okay, but that it is encouraged.

No one ever says that the Internal Revenue Code is a "living, breathing document," and that lack of life in many senses makes its provisions easier to parse than the constitution's. Because the constitution's text has been trampled on repeatedly, the document no longer offers much by the way of structure, and the free-slinging opinions are difficult to reconcile.

And, again, I'm not making any characterization regarding the merits of a "living" constitution, just saying that that approach adds considerable confusion to a study of that text.

Posted by: andy | Sep 21, 2006 6:42:29 PM

I think the point about realism versus formalism is intriguing. It seems to be true that students (and perhaps profs) either think that legal reasoning is just a pretext for power, ad hoc, result oriented or that legal reasoning follows some very simple logic ("The speed limit is 55 mph. My car is moving at 60 mph. I am speeding."). There seems to me to be a deeper problem of how to teach our students to formulate arguments, rather than just spot issues to which simplified legal doctrine can be applied, like a cleanser to a carpet stain. Tort law, something I have occassion to teach, can be a good vehicle for showing how to formulate arguments and to identify typical moves that occur in legal reasoning. But given its breadth, constitutional law may be a better vehicle for illustrating the skill and art of legal argument, both as a tool for reaching certain political results and as a structured, tightly woven series of rhetorical moves (and I mean rhetoric in the classic, not modern, sense). The first would appeal to the realists among us; the second to the Mr. Spock's.

Posted by: Shubha Ghosh | Sep 21, 2006 8:01:20 AM

Well, one of the reasons is that very few of the professors who teach it know much about it and teach it well. Huh? (Oh oh, criticism coming.) Constitutional law is not one subject but a series of subjects. It addresses the nuts and bolts of government, elections, creation of a judiciary, the powers of an executive, protected rights: the nuts and bolts of government, questions of power and the allocation of power and philosophic issues about the extent of government and the protections we are afforded against government. No offense, but how many people can reasonably be expected to teach a course with that type of breadth? One of the effects is that folks who teach constitutional law invariably have areas that they know more about -- so they tend, knowingly or unknowingly -- to concentrate on those areas and skirt real problems in others. (Most teachers everywhere do exactly the same thing.) This, of course, makes learning the broad subject matter and preparing for a test on the areas the instructor is not an expert very difficult.

Now, let us add in a few more variables. In my experience, which is limited to having taken a three or four classes in Constitutional law (not including classes that dealt with constitutional issues as part of the subject matter) and listening to maybe a half dozen other profs teach (including, many many years ago, Professor Sherry -- I snuck into a lecture or two of hers while a grad student), Constitutional law is most often taught almost as a common law subject, with only a faint reference to the text of the document and a first line "statutory" construction. So, for many students, constitutional law is not so much a process of understanding law and Constitutional construction, but rather, following trains of thought over time.

Now, impose on all this a deconstructionist lens of one type or another, or an attempt in some other way to analyze Constitutional law almost as a philosophic subject or a branch of political science -- without, of course, a professor expert in the tools of political science or philosophy -- and you have a subject that feels like shifting sands. Further, when taught too abstractly or too much as a course about power, students lose an understanding the process of building the law (which students are spectacularly ill-informed about anyway), further making it almost a subject in the ether. (Remember Galbraith's Anatomy of Power?) Added up, plus other factors which make the study difficult (e.g., the tendency to look at opinions as almost philosophic tomes) and...well, in my humble opinion, students can be fairly easily overwhelmed and lose the themes, balancing acts/tests and doctrines that are the essence of learning Constitutional law.

Posted by: Mark | Sep 20, 2006 6:10:53 PM

I would ask whether the students who think constitutional law is hard are taking it in their first year or in the second or third year. Having taught both constitutional law and civil procedure to first-year students, and constitutional law (and related areas) to upper class students, I have come to the conclusion that constitutional law is very difficult in the first year for the following reasons.

Most students seem to arrive at law school as either absolute legal realists or absolute formalists: There are no right answers (it just depends on the judge) or law always provides answers (you just read the text), nothing in between. Often, if you manage to push them off their pole they shoot straight to the other pole. It takes them a while -- much of the first year, for most students -- to construct and internalize a more nuanced view and to become comfortable with a mixture of certainty and uncertainty. It is only then that they are ready to confront constitutional law, which presents the most difficult circumstance for accommodating or constructing a nuanced view (look at all the constitutional formalists and attitudinalists among law professors!). If you give students constitutional law before this, they not only find it difficult, but it also delays their ability to internalize a nuanced view across the board.

Posted by: Suzanna Sherry | Sep 20, 2006 5:32:26 PM

Some people see constitutional law as an example of politics through other means. But it also strikes me that there are areas where constitutional law might actually spice up a subject, rather than deaden it. I like teaching preemption in both my IP and Torts classes. In IP, it brings to life the relationships among the various areas of IP (particular trade secret law and patent/copyright) and between common law and statutory protections for IP. It also allows exploration of the nature of constitutional litigation and text (the ongoing debate over the meaning of limited times and the relationship between the IP and the Commerce Clause powers). In tort law, constitutional law enters through preemption and due process analysis and allows consideration of the federal structure to common law adjudication. Admittedly, in this last instance, we may just be imposing one layer of squishiness on another.

The bottom line probably is that most students do not see themselves making constitutional arguments and practicing constitutional law. The gung-ho ones are those who are bound for a clerkship or the professoriate.

Posted by: Shubha Ghosh | Sep 20, 2006 4:40:38 PM

I think the above points are spot on. I am a 1L and won't get to con law until next semester, but I think I understand why students may feel the way they do. I think law students like arguing both sides, but knowing that ultimately one side has more weight in the prawfs opinion. Reading Due Process cases in Civ Pro produced numerous majority and dissenting opinions that are persuasive and hold equal ground in my mind. For me true uncertainty presents a greater difficulty than merely feigning to argue an opposing view. In addition, the greater ability to interpret very broadly or narrowly further complicates things.

This is my realitively inexperienced view, so take it for what it's worth.

Posted by: S806 | Sep 20, 2006 4:33:38 PM

It seems to me that the main difference is that in Con Law pretty much everything is up for grabs, while in the rest of the courses in the first year curriculum (and, indeed, in the curriculum more generally) it's easier to get one's hands around the larger aims of the particular regime. Put somewhat differently, from my perspective (as a non-Con Law person) there are about as many theories of Con Law as there are Con Law professors. There are nowhere near that many versions of what it is we're trying to accomplish in contracts, property, torts, criminal law, or civil procedure. Most every argument in the latter classes will at least proceed from roughly the same assumptions about larger systemic aims, which isn't the case with Con Law.

If I recall correctly, a similar discussion took place at volokh.com a while back. I'll even push my luck and suggest that it opened with a post in which Orin confessed that he didn't understand why people find Con Law interesting.

Posted by: Chad Oldfather | Sep 20, 2006 4:30:10 PM

The difference is that most of con law was made up by a handful of Justices pretty recently, and they can change the law if they like. In contrast, many common law doctrines have been around for centuries and are unlikely to change.

Posted by: Helper | Sep 20, 2006 4:18:35 PM

Hmmm... I didn't find ConLaw "hard" but I didn't enjoy it that much (in spite of having a good professor). For me, it didn't have anything to do with lack of definite "answers"--I like that. However, it did have to do with one plain and simple fact: being a Supreme Court Justice does *not* make you a good writer.

Posted by: Dave! | Sep 20, 2006 3:57:53 PM

What separates, say, Torts from Constitutional Law is that while both of them have doctrines that are "squishy" in their application, the portfolio of doctrines available in Torts is pretty much set, while Constitutional Law is constantly subject to the Supreme Court's latest restatement, revision, rejection, conflation, misrepresentation, or misapplication of old doctrines.

Thus, Constitutional Law does not only threaten students with difficult application of doctrines -- it threatens students a far more complicated and uncertain set of doctrines to apply.

Posted by: Adam | Sep 20, 2006 3:33:31 PM

Great quote! Although if I remember correctly, Fred Schauer gave me a B+ in Con law (a long time ago), so he must have thought I got something wrong...

Posted by: Joseph Slater | Sep 20, 2006 2:55:30 PM

I think you've identified the main reason. Let me share a remark Fred Schauer made to me many years ago, when I was switching from teaching Constitutional Law to picking up Evidence (Fred has taught them both). Commenting on the difference between the two subjects, he remarked, "You know, in Evidence, you can get things wrong."

Posted by: Brian Leiter | Sep 20, 2006 2:39:07 PM

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