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Tuesday, November 23, 2010

Con Law, not so much?

As I think I mentioned earlier, I mostly do constitutional history. Specificially, I teach several types of constitutional history. I teach US Constitutional History in a general course for law students and graduate students in history, political science, and related fields; I also teach some more specialized law student/grad student constitutional history courses: I've taught a seminar on civil rights in times of war and trouble and a course that looked at constitutional history through the lens of citizenship. In addition, I frequently teach a law student/grad student seminar on comparative constitutional history, which compares constitutions across time and space.

And in my history professor guise I teach a lot of different undergraduate courses in constitutional history, from a course in the long history of civil rights, to research seminars on particular famous constitutional cases, to the usual overviews.

Almost all of my research and writing has been in constitutional history, broadly defined. I've looked at efforts to create a religiously based constitutional order in Massachusetts Bay colony in the 17th century. I've written about the intersection of criminal law and constitutional forces (specifially popular constitutional forces) in 19th century criminal law, and I'm starting work on a project that looks at transnational constitution-making efforts in China at the turn of the Twentieth Century.

And before I got into all this academic stuff, I was a civil rights attorney at a firm that specialized in the 4th Amendment claims, and also did employee work that sometimes raised constitutional issues.

So I've basically been dealing with constitutional law, from a variety of perspectives and in quite a few settings, for my entire working life. And I admit to being a bit puzzled by the role of constitutional law in law schools.

I should probably make a pre-emptive confession here: I cut most of my constitutional law classes when I was a law student.  So I understand that it's not always a particularly gripping course, even for people (especially for people?) for whom constitutional law is fascinating.

But even given that, I'm a bit puzzled by the fact that it seems to play a smaller and smaller role in the law school curriculum. As best I can tell, and I have not exhaustively reviewed the first and second year curriculum for most law schools, a number of law schools no longer require Constitutional Law I. It also appears that those schools that do require a semester of constitutional law rarely require, or even recommend, further courses in constitutional law. And those schools that do not require any constitutional law often do not recommend, or strongly recommend, students take it.

And that strikes me as odd, for several reasons. At some basic level, the constitution is about the only thing, aside from geography, that we share as a nation. (I hasten to assure you that I use the word "share" very loosely, I have grasped that in many ways what most unites us are our bitter disagreements over what the constitution means.)  And while one could once assume that students who finished grammar school had studied the constitution (it was a requirement for graduating from 8th grade and from high school when I was a K-12 student), I assure you that that is no longer the case. My undergraduates rarely have studied the constitution before they take one of my history courses, and often have hazy (if not disturbingly wrong) ideas of what it provides.  I doubt they are unique.  Given that the constitution is no longer taught to younger students on a routine basis, I am puzzled by the fact that law schools are de-emphasizing it as well.

I've heard, I concede, the argument that there is no reason to waste a slot in the law school curriculum on constitutional law since most students at most law schools are not going to be Supreme Court clerks or ACLU attorneys.  I suppose that's true. But again, I was neither a Supreme Court clerk nor an ACLU attorney, and I spent five years writing memos and drafting arguments that rested on constitutional history and precedent. 

But more to the point, the argument that most law students are going to do bankruptcy, or real estate transactions, family law, or corporate work and don't, therefore, need constitutional law strikes me as resting on an oddly constrained theory of law. Don't property lawyers need to know something about takings or the scope of the provision that no state shall deprive a "person of ...property without due process of law"? In a post Citizens United world, wouldn't it help if corporate attorneys understood the First Amendment?  Might it not be that issues of citizenship, or equal protection, or religious freedom sometimes came up in family law cases?

But there's more to my confusion than that. The argument that there is no need to teach law students constitutional law because most of them will not be constitutional lawyers seems to me to rest on the strict category divides that drive law school curriculum. And those divides strike me as being both artificial and not the way the world works (or has worked).  There is slippage between most of law's curricular categories, as when a theory from torts influences contract claims or vice versa, and we all know that. But somehow, we can't work from that accepted principle to what seems to me to be the equally obvious principle that constitutional assumptions have shaped and will continue to shape many non-constitutional areas of law. Even if a divorce case involves no questions of citizenship, or equality, will involve theories of due process and equal protection of the law. And even if that divorce case is settled before trial, the likelihood of settlement and the willingness of the parties to enter into the settlement are, also, determined by professional and lay conceptions of process and rights that are, at their heart, constitutional.

So I don't think you can fence off constitutional law and say "we don't need to really teach it, our students will never use it." Nor am I persuaded by the argument that the best way to deal with any constitutional principles that might influence other areas of law is to raise the constitutional issues in classes that focus on those other areas. If all students read are three cases on the First Amendment rights of corporations in a corporations class, I'm hard pressed to believe they'll know much about the First Amendment or how it might effect a particular corporate client. The same is true if they read two cannonical cases on child custody and the constitution in a family law course.  In either case, you are giving law students the academic equivalent of a tourist's phrase book. That's hardly going to make them fluent or particularly inclined to try to become fluent somewhere down the line. It may not even make them capable of articulating a comprehensible request for help should the need arise.

It strikes me as a better argument that constitutional law courses as they are currently conceived don't provide a particularly helpful background for students, either. To make that point more directly, the strongest argument against my suggestion that lawyers in many areas of law might, sometimes, need to be able to address constitutional claims or think in constitutional terms as part of their work, is that the basic constitutional law sequence as it is taught in law schools really doesn't provide them with the sort of background that might help them.

But my response to that is that just proves we need to teach constitutional law to law students differently. I'll return to that in a latter post. For now, I'm interested in knowing if there are other arguments out there for dropping constitutional law as a required course, or reducing the number of con law courses that are routinely offered at a law school.

Posted by Elizabeth Dale on November 23, 2010 at 04:07 PM | Permalink


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I despise the argument "we don't have time in the curriculum to learn this theoretical topic, we have to learn things we'll use in practice." Its closed-minded and it positions lawyers as little more than technicians.

In any event, constitutional law has always struck me as one of those areas that you don't realize how important it is until you encounter someone who doesn't know anything about it. I practice corporate and commercial law and have never seen the inside of a courtroom, yet issues related to constitutional law (division of powers, limits on government authority, etc.) keep coming up in one way or another. And if you haven't taken constitutional law, you won't recognize that those issues are coming up.

Posted by: Mike | Nov 26, 2010 5:18:14 PM

The Preamble in the Australian Constitution states that the 'supreme absolute and uncontrollable authority remains with the people' (preamble:p.286) We are supreme over the State and Federal Parliaments.

Posted by: Jill Brown | Nov 26, 2010 5:45:44 AM

"Parliament does not have power to authority to enact law purporting to eliminate and/or compromise a constitutional, common law right. Any attempt to enact legislation to over-rule Common law of the people without the authority or consent of the Elector's Parliaments is ultra-vires it's authority and/or power. Such consent can only be given by the Elector's Parliaments at referendum" MM, UCLC.

Posted by: Jill Brown | Nov 26, 2010 5:40:38 AM

I would second Jonathan's post. Criminal Procedure was almost a required course at my school and Property did cover takings and improper restictive land use covenants. We also offered Advanced Con Law as a writing course and an entire con law class on speech issues, which was a very popular seminar.

Posted by: Matt | Nov 24, 2010 11:25:00 AM

I'm not sure I am convinced of your premise. Before concluding that constitutional law has been deemphasized in the curriculum I think you need to account for the fact that many things that used to be taught as part of "Constitutional Law" are now taught in other courses or as their own courses. For instance, at most schools "Criminal Procedure I" is almost exclusively devoted to constitutional questions. Federal Courts/Federal Jurisdiction has a heavy constitutional component (including Art. III jurisdiction, sovereign immunity, etc.), and it's a good part of most Administrative Law courses (due process, separation of powers). Many property professors cover takings, and its certainly covered in most land-use classes, and so on.


Posted by: Jonathan H. Adler | Nov 24, 2010 9:08:25 AM

It seems to me that two forces have dictated curriculum of late: 1) The ABA's suggestion/requirement that schools have fewer required courses--which is why upper-level con law or dedicated rights classes went by the wayside as a required course and 2) The Bar, which dictates what course schools try to direct their students into. And while few students are going to truly practice con law, structural, First, Fourth, and Fourteenth Amendment stuff will be on the exam. So I think most schools (quietly or otherwise) push students into the classes that will expose them to those issues, at least just enough to get through them on the Bar.

Whether that is enough, or whether students should be doing a better job of this focused not on the Bar but on the real world, is a nice question.

Posted by: Howard Wasserman | Nov 24, 2010 7:17:11 AM

Is the job market only softening for law school grads looking for specific, high-paying jobs at the top law firms, or if it means that the United States has too many lawyers in general? However, a report earlier this year by the National Association of Law Placement indicated that even though the majority of law school graduates can still find jobs, a far higher percentage of those grads are now taking jobs that are temporary.

Posted by: medical school scholarships | Nov 24, 2010 6:03:11 AM

As an attorney, who loved con law and took advanced con law from a fantastic, interesting and disturbingly smart yet unassuming professor, I can tell you that people don't take con law at my school, because many of the profs who teach the various con law electives are obviously politically motivated and even when I agreed with their politics, I didn't want it infused into my con law course. Furthermore, it isn't that we are told, "we won't use con law as lawyers," because most of us firmly believe that law school teaches you very little about the actual practice of law. The practical aspect stems from the fact that Con law isn't really necessary to pass most bar exams. Everything you need for the multistate, you can get from Barbri, so why waste time on it.

Posted by: Matt | Nov 23, 2010 5:54:24 PM

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