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Friday, November 09, 2018

Teaching Con Law in the Current Moment

I'm starting to plan ahead for next semester, and would love to hear what other Con Law professors are doing in terms of folding the issues of the current moment--e.g., the Emoluments Clause, birthright citizenship, the ability to subpoena the president, executive privilege, the authority of the special counsel, appointment and removal power, the census--into their classes.  I've always given some extra time to current issues, but in the past, it's been easier because they were natural outgrowths of the bread-and-butter 1L Con Law subjects (for example, both NFIB v. Sebelius and Obergefell build perfectly on Commerce Clause, Tenth Amendment, and Equal Protection doctrine).  I'm finding several of the current topics more challenging to integrate into the syllabus since they are more specialized and there's not necessarily much case law (yet).  To what extent are all of you generally sticking with your regular syllabi, versus significantly re-doing them in order to build these topics in?  If the latter, what are the topics that you're dropping to make room for them?

Posted by Emily Gold Waldman on November 9, 2018 at 05:01 PM | Permalink


Thanks, Rick--that's very interesting. My Con Law class (despite being only four credits!) covers both powers and rights, so I always have a lot of picking and choosing to do. But if I understand your post correctly, you don't add a "current issue" to the syllabus until there is an actual Supreme Court decision on the topic? Or do you ever include a lower court decision (or two decisions, in the case of a circuit split), if it seems like the issue is on its way to the Supreme Court? I've sometimes done that.

Posted by: Emily Waldman | Nov 14, 2018 5:26:50 PM

Hi Emily - for what it's worth, I have not made changes to my (required, first-year, structure-and-powers) Con Law class to reflect contemporary controversies and developments (or, for that matter, ones that were "contemporary" between 2008 and 2016). The "big questions," it seems to me, stay the same. That said, there are often opportunities to remind students, in passing, that this-or-that contemporary controversy is a reminder or illustration of the continuing "live"-ness of those questions (e.g., about why the Appointments Clause was thought to be important).

Posted by: Richard Garnett | Nov 14, 2018 10:11:48 AM

Developing nations have cultures based around clothing, culture, and religion--and they teach their children these from a young age.

Developed nations have cultures around novels, music, and sports--and they teach their children these from a young age.

America alone has a political culture based on the bill of rights and the warren court--and we never teach most of our children any of this at any time and leave it to Rush and Rachel.

Posted by: the cult in culture | Nov 14, 2018 7:29:59 AM

Academics want to wait until graduate school to teach constitutional law. Then when someone like Trump comes to power, and they write about a supreme court case in the New York Times (or talk about it on CNN), half the population says, "we didn't learn about that in high school, it can't be that important or Rush would talk about it. The elite is just trying to scare us!"

If you want people to know what you're talking about when you reference the supreme court, make sure you teach people it in high school; because half of us never go to college and almost all of us never go to grad school.

If you want people to be more familiar with the works of William Brennan than William Shakespeare, don't spend 10x longer in high school on the latter than the former.

Posted by: took the GED during a TED talk | Nov 14, 2018 3:58:34 AM

Even though we voted for Trump to preserve Heller, we don't bother to teach Heller in class until our kids are 23 (grad school) and have been voting for five years.

Maybe that's why they used to give tests for voting, so schools would teach to the test.

Posted by: holding the nose to cast the ballot | Nov 14, 2018 1:09:10 AM

It is curious that we wait until fifth year of college (first year of graduate school) to teach con law when it is literally what makes us different from the rest of the world and is why most teachers got into teaching--to try to preserve things like equal rights, the first amendment, and voting.

Posted by: teach free speech in high school | Nov 14, 2018 12:52:03 AM

Maybe if we taught intro to substantive due process in 8th grade, intro to first amendment in 9th grade, intro to 4th amendment in 10th grade, intro to 5th and 6th amendment in 11th grade, and intro to the commerce clause in 12th grade . . . we would have more time in college to teach some of the other core con-law issues.

Perhaps the whole problem with teaching the law is that we start teaching it after people can vote rather than teaching at least the basics before people start voting, so they know what they're voting on.

Posted by: teach early and teach often | Nov 13, 2018 1:04:09 AM

I just had a short classroom discussion about birthright citizenship after we covered Dred Scott. Dred Scott is in the Equal Protection section in my casebook, and I like to cover it briefly to drive home US history on the issue. I also covered Trump v. Hawaii when we covered executive power. Some issues, like emoluments, I do not discuss in class.

Generally, I try not to spend too much class time on current events. Like history and theory, I think some coverage keeps the class engaged. However, I try to focus class time on the core issues tested on the bar. Panels and student org events outside of class can provide a good opportunity to fill in the gaps.

Posted by: Jeff Schmitt | Nov 12, 2018 3:58:16 PM

As a recent-ish ex-student, I don't think I would have been interested in being taught about most of this stuff, even though I am interested in and have written about some of it. The Emoluments Clause, for example, while a fun legal problem, is of almost entirely topical interest; after the pending cases are resolved, there may not be litigation about it for another 200 years.

Posted by: Asher Steinberg | Nov 12, 2018 1:00:10 AM

There’s definitely major case law on some of these issues (like Nixon, Canning, Morrison v. Olsen), which I do cover. However, some of the issues cropping up are more arcane and I haven’t included them in the past. The challenge with Con Law, especially when it’s all packed into a one-semester course, is that there is way too much to cover and it’s a zero-sum game. I have always adjusted the syllabus to give a little extra attention to what’s going on right now, which is why I’m curious whether and how other Con Law professors are doing so.

Posted by: Emily Gold Waldman | Nov 11, 2018 7:31:29 AM

I wonder whether there was a President in the last fifty years who did not invoke executive privilege. And Obama certainly had his issues with the appointment power (Canning). Did you teach that then?

Posted by: Biff | Nov 11, 2018 1:42:42 AM

I know this isn’t what you’re looking for, but I think that Trump is shining a light on the unwritten, common law, tradition-based, part of the Constitution. That’s not something that law schools tend to teach.

Here’s a Canadian perspective on the subject: https://www.canadianlawyermag.com/author/ian-holloway/trump-tradition-and-the-rule-of-law-in-canada-16435/

Posted by: Ian Holloway | Nov 10, 2018 11:46:54 PM

In United States v. Eaton, 169 U.S. 331 (1898), the Supreme Court disagreed with what I've written above, holding that a non-confirmed officer could temporarily exercise the powers of a principle officer without constitutional problem:

Because the subordinate officer is charged with the performance of the duty of the superior for a limited time, and under special and temporary conditions, he is not thereby transformed into the superior and permanent official. To so hold would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered.

Posted by: William of Bauderillard | Nov 10, 2018 5:16:47 PM

Actually, yes, I do cover the Second Amendment.

Posted by: Emily Gold Waldman | Nov 10, 2018 7:42:48 AM

Are you also going to teach current second amendment law, like Young v. Hawaii? Or are you only talking about recent cases that justify limiting Trump's power or removing him from office--even though you never talked about those things when Obama was in office?

Posted by: Removing Confederate Emoluments | Nov 10, 2018 5:15:02 AM

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