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Wednesday, April 08, 2009

Of Canapes and Comparativism

Eric Posner has a short post at Volokh asking whether law schools should offer courses on state constitutional law, and observing that "[l]egal scholarship has ignored state constitutional law for decades, though this is gradually changing."

I think they should, but I also think the question deserves some refinement.  Global comparative constitutional law has become an increasingly hot topic in legal scholarship, and global comparativism, constitutional and otherwise, has become not only a fairly entrenched subject at law schools, but one that is gradually making its way into the first-year curriculum at some schools.  This is usually justified on the basis of globalization, cosmopolitanism, and so on.  Of course, it is true that these are increasingly important topics.  And it is also true that we might get some comparative gains from global constitutional comparativism that we don't get at the level of comparative state constitutional law.  Still, we already live in a federal system, and even those young lawyers who don't seem ever to get a taste in practice of the global legal issues that their professors and deans tell them will be relevant to their everyday lives as lawyers (man, I used to hate jetting off to Brussels all the time when I worked at a law firm) will surely be exposed to comparative state law issues.  And even though comparative global constitutionalism may provide greater contrasts and interesting data, surely we get some value from comparative state constitutionalism, especially in these days of same-sex marriage litigation.  So I think Eric's question should really be, should law schools make a greater effort than they currently do to teach state constitutional law and comparative state constitutional law, especially given their apparent willingness to focus on global comparative constitutionalism?

To this question, obviously, I think the answer is yes.  And to the question why they don't, I think the answer is quite simple: It's the economics, stupid.  More broadly, it's not only the dollars-and-cents economics, but the economics of prestige involved.  Just as, to use David Lat's immortal words, the tendency in elite law circles is to view clerking for a state court rather than a federal judge as "ghetto," there is a similar reaction to state constitutional law as compared to global comparative constitutional law.  The conferences are better, the people "fancier," the travel is cooler, and the publication opportunities are more prestigious (unless you're Stephen Gardbaum, but he writes global comparative stuff too).  These kinds of incentives are important to many academics; like Willie Sutton, they're not going to go where the money and the interest ain't.  Of course, state constitutional law had a brief flourishing moment some years back, but these days the "money," broadly speaking, is more likely to be in global comparative constitutional law than state law, and all those people expending prodigious resources to argue about when, whether, and how the Supreme Court should cite to foreign courts once every three or four years won't spend a fraction of the same amount of time thinking about the same questions in a context that's closer to home.  

That is, unless and until some entrepreneurial elite law professor comes along and convinces the field to move over.  Once he or she starts hosting a higher-class cocktail party on these issues, everyone else will follow right along.  Perhaps the recent marriage cases will spark that kind of interest.  But unless money and prestige are involved, I wouldn't hold my breath.           

Posted by Paul Horwitz on April 8, 2009 at 04:48 PM in Paul Horwitz | Permalink


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