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Thursday, July 09, 2020

Teaching and evolving doctrine

I will teach 1L Constitutional Law (structure, powers, and basic 14th Amendment) for the first time this semester.

A friend who teaches the course at another school described the difficulty in this course as the rapid increase in the amount of law in a course whose time structure has not changed. Many major cases that occupied many casebook pages and many minutes of class time when he began are now one-paragraph or one-parenthetical notes. In the past two weeks, the Court has decided four cases--Seila Law, June Medical, Vance, and Mazars--that could be substantial cases in addition to or in lieu of what is in the casebook. (My momentary preference is to add Seila Law and maybe Mazars but not the others). And that is without cases radically altering the legal landscape (we are not living through either the Switch in Time or whatever we call Lopez).

Is this unique to Constitutional Law? Do other law school subjects (especially 1L course) have the same issues? Is Con Law unique because the focus is on SCOTUS decisions, so every new case seems important and necessary to the course?

I have experienced this a bit with personal jurisdiction in Civ Pro. I have moved several post-2011 cases (Nicastro, Walden, and Daimler and probably Ford when it comes out next Term) into the mix. During an early Civ Pro Unavailability Workshop someone raised which of the nearly ten recent P/J cases to include and which 1980s-era cases to replace, to say nothing of what to do with Pennoyer. Less so in Fed Courts and Civil Rights, where I use a treatise and new developments or applications (e.g., the legislative and policy move to eliminate qualified immunity) can be integrated into existing materials without displacing them.

But it feels pervasive and never-ending in trying to plan this course. Thoughts?

Posted by Howard Wasserman on July 9, 2020 at 01:01 PM in Constitutional thoughts, Howard Wasserman, Teaching Law | Permalink


I teach Con Law and Contracts. While I add and drop cases every semester for Con Law, my Contracts syllabus rarely changes. I tend to favor depth over coverage, so I don't mind dropping old cases, and sometimes I will drop a topic completely. I think it would be a mistake to just keep adding new cases without cutting the old, because your coverage will get too superficial. Students also want to see the new cases.

Recently, I have been cutting some of the cases from the 14th Amendment to focus more on powers.

Posted by: JEFFREY SCHMITT | Jul 12, 2020 11:35:58 PM

I'm a practicing lawyer (not a law prof), and for me Civ Pro was the single most formative class for developing my legal reasoning skills. There are probably many reasons, but my guess is there are few other classes 1L year that are quite as technically demanding. There's plenty of time after law school to learn the "current state of the law", but a highly honed sense of how rules work and how to successfully unpack and marshal a web of Con Law, statutes, rules, and historical and divergent caselaw will stay with you the rest of your career.

Posted by: Phillip | Jul 10, 2020 10:18:26 AM

Just imagine what con-law classes in Hong Kong are like this fall? The change in the Hong Kong bill-of-rights recently has been so dramatic (HK national security law) that many people took to the streets, The Streets!

Can you imagine americans taking to the streets during a pandemic? The Hong Kong must be experiencing cultural whiplash.

Posted by: Ng Wai Chung (Blitzchung) | Jul 10, 2020 1:42:56 AM

Yeah, this is just life in conlaw land. Like Sam said, the real solution is to have the vast majority of the course be enduring cases. I probably only change a couple of cases a year, when something really really huge comes down in one of the major areas.

Posted by: Paul Gowder | Jul 9, 2020 9:50:34 PM

I think the obligation of the teacher is to pick the key cases that explain constitutional doctrine. When I was in school we spent half the semester on Marbury. While I don't recommend that there are seminal cases that need to be covered mixed with some important recent cases.

Posted by: sam tenenbaum | Jul 9, 2020 8:30:22 PM

It's going to online, right?

No need to sweat too much.

Online is just for getting credits, not for learning.

Posted by: thegreatdisappointment | Jul 9, 2020 2:33:24 PM

Indeed it is unique to constitutional law. This is the nature of every constitution. The supremacy it bears, and abstract fundamental principals reigning all over the judiciary and other institutions. Due, or thanks to them both, such principles, spread or influence, every case almost, every legal field. So, constitutional principles, often raised in courts and beyond.

Suppose, speedy trial. So, it must govern every case almost. Right to be represented. The so called separation of powers. Prohibition on cruel and unusual punishment, or excessive fines, and so forth....All are fundamental, abstract, and reign supreme.

Yet, why to keep up with endless catch up ? One may teach landmarks (or not) rulings as illustrations, and get it done. The way one teach and educate, is far greater more important than being totally updated. It won't help to catch up, become updated, while basic insights and practicality is missing.


Posted by: El roam | Jul 9, 2020 2:09:01 PM

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