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Wednesday, February 02, 2022

Teaching anti-canon

Gerard and Eric Segall reflect on teaching Roe/Casey, perhaps for the final time, in the shadow of Dobbs and the prospective end of constitutional protection for abortion. Gerard also notes that the end of affirmative action may be looming, raising similar issues for teaching Baake and Grutter.

It raises interesting questions about when and how to teach anti-canon, previously canonical cases that no longer are good law. Should we still teach abortion or affirmative action as "this is what the law was for 50 years and this is how and why it ceased to be the law?" Does it matter that the old law remains relevant to the sub-constitutional law being enacted in states and in Congress affecting the rights at issue (that is, as students watch states ban abortion, should they understand what the law was that stopped and now allows that)? Is it time-limited--teach it to the next generation of students (e.g., those who are teens now) who have living memory of these rights, then phase it out over time? Is there a difference between anti-canon that has been overruled in an area that remains alive as part of constitutional law, so teaching it shows doctrinal evolution (e.g.Korematsu, Lochner, Plessy, Dred Scott)? Specifically for Con Law, does it depend on whether we conceptualize the course as teaching current (judicially enforced) constitutional doctrine to people who need to take and pass the bar exam (and who may encounter a remote constitutional issue over their careers but likely will not practice "constitutional law") or as something like a constitutional history course?

I do not teach Con Law, but we have had similar discussions in Civ Pro. I continue to teach Conley (which, in fairness, continues to be sort-of good-ish law), but I have reduced Pennoyer to a five-minute lecture on the power theory of jurisdiction (although time constraints drove this choice more than no longer valuing the case). The difference is that no one saw Twiqbal coming, the way we are watching Dobbs and Harvard like slow-moving freight trains. Even Egbert, while calling on the Court never to extend Bivens to the First Amendment or any other case not named Bivens, is not calling on the Court to overrule Bivens and eliminate damages actions against federal officers.

Posted by Howard Wasserman on February 2, 2022 at 09:57 AM in Howard Wasserman, Teaching Law | Permalink


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