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Thursday, October 06, 2022

"Blowing Up Law School?"

I have a few thoughts on Slate's article about constitutional law teachers and the current Supreme Court. The propositional question it asks is, "Law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution to align with the GOP?" I should say that the article, and the people quoted, do a tremendously powerful job of voicing anger, disappointment, and grief over the Dobbs decision. My only hesitation in posting anything about the article was that 1) of course, I have no desire to exacerbate those feelings, and 2) as I suggest below, the article is and isn't about Dobbs in various ways. It is not framed as being about Dobbs, but Dobbs is virtually the only thing it discusses. That makes it hard to judge, when reading the article, how independent of Dobbs the question asked by the author and the responses given in it actually are. Certainly it is not as if the Court has not issued other opinions that are subject to the same criticisms. In any event, most of my thoughts about the article are not directly about Dobbs as such. So here are a few observations:

1) Constitutional law is not law school. It's certainly far from covering the whole of the legal curriculum. It interests me, but I would not call it the most difficult or interesting subject in the law. It's not even close to being the most important course students take in their first year of law school--if they take it in their first year at all. There are certainly reasonable arguments that constitutional law should be a mandatory course at some point in law school, but they are only reasonable, not airtight. An article about the difficulty of teaching constitutional law is a perfectly reasonable subject. But this is a competitive marketplace, so naturally the headline talks about "Blowing Up Law School." The accepted if imperfect rule is never to blame the writer for the headline, and for the most part the story is more narrowly focused, but as the quote above suggests, it does tend to elide constitutional law with the whole of the law that is taught in law school and practiced by lawyers.

I do not suggest that other subjects in law are wholly "legitimate" or that those subjects are not also "politics," in the broad sense of the word. Legal Realism was not primarily a constitutional law-driven movement and its primary examples came from private law. The difference, among other things, is between a very slow and a greatly speeded-up film--between Warhol's Empire and an early Chaplin reel. Private law's politics operated over ages--and still do. American constitutional law, by contrast, has only had a couple of centuries to go through the contortions and political debates that occurred over much longer periods of time in, say, property or torts; moreover, stability and predictability are more important in those areas than in constitutional law. I welcome a certain amount of healthy cynicism and crises of faith with respect to any legal subject, torts and property included. But certainly there are other subjects that seem to occasion less of it, and most law students focus on those subjects most of the time. It is of course possible that one's reaction to a lawless Supreme Court might affect one's faith in any judicial interpretation of law at all, in any area and at any level. And, as I suggest again below, I have some sympathy with a sense of lack of faith in judicial interpretation of law tout court, although not specifically because of the current Supreme Court. But I am not at all sure that's the logic at work in this story. Perhaps one should just charitably read the headline out of the story and the word "constitutional" into any reference to law in its text. It would be interesting to read the views of someone for whom this Court has indeed eroded their faith in law altogether, and in teaching law. But I don't think that's this article.    

2) Constitutional law is not just constitutional rights. Only two contemporary Supreme Court decisions are named in the story: Trump v. Hawaii and DobbsDobbs is a rights case and Trump v. Hawaii is read and reacted to strongly mostly for its effect on rights, although it is also a structure case. But that case only makes an appearance at the article's outset; the rest of the article only discusses Dobbs. What about federalism and separation of powers? I don't mean that as a defense of the Court's recent decisions in those areas--in this post I'm not defending the Court's work in any area--and certainly there's plenty of ferment on the Court in separation of powers law. Nor, to repeat what I acknowledged at the outset, do I ignore the point that Dobbs was profoundly consequential and involved profound reactions. But just as con law is not the whole of the curriculum in law school, rights are not the whole of the curriculum in constitutional law, and there are perfectly reasonable arguments that they're not the most important or consequential part of the curriculum in that subject. (They are also arguably not the most interesting part of the curriculum to teach. I write on rights, but often find teaching structure to be a more rewarding aspect of teaching the main constitutional law course.)

I understand why the article's focus is on rights, and I also understand that rights are more often more interesting than structure to journalists, including legal commentators in places like Slate. But the exclusive focus is still somewhat odd, and more could have been said about whether and how one affects the other.

One might add that just as con law is not the whole curriculum and rights are not all of con law, the Supreme Court is not the whole of constitutional law. I am curious how these professors now feel about lower courts, and about the executive and legislative branches as constitutional interpreters--and all of these sources should be a much larger part of the constitutional law curriculum than they currently are. If they now feel that the Supreme Court is utterly lawless, do they feel the same about constitutional law writ large? After all, constitutional law as an interpretive exercise is undertaken by many others besides the justices, and they all ultimately occupy those positions of interpretive power through politics. Is this just about the current Court? (Some of the people quoted do suggest that they will now be widening their focus beyond the Court when teaching. That's a good thing! But it's good regardless of their thoughts, or anyone else's, on the current Court. Despite valuable efforts in this area, most constitutional law casebooks still have an unhealthy fixation on that one court.)      

3) You were warned. As I suggested the other day, American law professors have an odd relationship with things like Legal Realism and Critical Legal Studies. The latter, of course, is a critique of "legal liberalism" and thus, unsurprisingly, it was routinely attacked or dismissed by legal liberals. In its time, Legal Realism had its own critics. These days, I would say, Legal Realism is supposed to be taken for granted and, although CLS gets nowhere near the attention or use it deserves, except from a very few people on the legal left and right, everyone is happy to talk in general terms about "critical theory," various forms of critical theory in law, and "critical thinking," in a way that suggests that they are adherents to these approaches.

But more legal scholarship suggests that they are not adherents than that they are. The average article criticizing, say, laws that restrict schools' ability to teach "critical theory" is much more likely to engage in standard doctrinal analysis, along with a sweeping and fairly uncritical invocation of liberal values, than to use, engage with, or take seriously any actual critical theory. Few legal liberals or progressives today would sign on to Paul Carrington's famous suggestion that it might be best for Crits to "depart the law school, perhaps to seek a place elsewhere in the academy." But that is because they recognize the value of co-optation, domestication, lip service, indifference, and dismissal, along with changes in fashion. (At least Carrington took CLS seriously.) For the most part, they remain in thrall to Carrington's belief in "keep[ing] the faith of the secular religion." For all that law professors like to see themselves as worldly, they are still no less attached to the "romantic innocence" which Carrington urged law professors to bring, unashamedly, to "the ultimate issue of their profession." Much of the language of the contemporary law professors quoted in the Slate piece is equally religious, right down to the telling appearance of the word Carrington uses--"faith." Of course a loss of faith can be brutally unsettling, even leaving aside the substantive right at issue. But one might point out that the faithful were urged all along to bethink that they might be sorely mistaken in their faith.

The Slate article seems to assume it would be a mistake for constitutional law professors to "embrace torpid nihilism." It does not, however, explain why it would be a mistake, other than perhaps for more or less religious reasons. Nor does it explain why the nihilism must be "torpid." (Nor, for that matter, does it consider the possibility that there might be any tertium quid between nihilism about law and "keeping the faith of the secular religion" of law.) 

Not wholly incidentally, it's striking that while Carrington's article warned of the danger of teaching the "nihilism" of CLS in law school, he confidently assured his readers that "[t]he professionalism and intellectual courage of lawyers does not require rejection of Legal Realism and its lesson that who decides also matters." Perhaps this was a matter of holding on to what had long since been domesticated and then taken for granted, while seeing the new "threat" as entirely different in its dangers. I'm not sure. I am sure that to believe and assert with equal confidence that Legal Realism and "who decides also matters" were just fine, while CLS was a four-alarm fire, requires a great deal of finesse and a certain amount of skillful management of cognitive dissonance. These are traits most of us make use of a good deal of the time. One might, with complete sympathy, make a similar observation about those who until recently were comfortable teaching that constitutional law always involves some politics and is shaped by it--comfortable, say, relating Frankfurter's quip about the death of Chief Justice Vinson being the first evidence he had seen of the existence of God--but are now shocked and disappointed to the point where teaching the subject is now a new challenge, seen as different in kind and not just degree. If one credits the folks quoted, it apparently took a fair amount of management of cognitive dissonance to teach confidently and comfortably before Dobbs. Perhaps that decision simply reveals to them just how much of that management was occurring all along. 

4) It's not new. I tend to think very little, if anything, is truly new. Hell, saying "it's not new" is old hat. With or without arguments about differences in degree and differences in kind, people can or ought to be able to understand that. But my colleagues sometimes have an odd relationship with history, as Americans seem to in general. For example: One might have expected the names "Bush" and "Gore" to come up somewhere in the article. Bush v. Gore was the first 21st century crisis of faith in constitutional law; it was experienced as such very viscerally by plenty of participants in the interpretive community at the time (at least they said they experienced it as such); and it occurred not very long ago. That case is never mentioned.

One might also read this ageless article about the Harvard Law Review Forewords, and remember that the Forewords in its first years were dominated by "heavy-handed criticism" of the Court for departing from "law" properly done. (See footnote 52 of that article for examples.) One might read the recent Frankfurter biography and the withering, often despairing views of Frankfurter and Hand concerning the Court of that era. I understand that Justice Douglas has been off the Court so long that entire careers teaching constitutional law have elapsed since his death, but I imagine that Douglas alone, in his life and on the page, was responsible for his share of crises of faith in constitutional law as a serious enterprise. We--casebooks, histories, con law teachers, and so on--tend to teach the Lochner era and the Court in the first term of FDR as part of an already-completed historical narrative in which, roughly speaking, good triumphed over evil. When I took constitutional law, three years before Lopez, in 1992, a good deal of history simply ended in 1937. Momentous things happened after that, but they were all just part of the project of living on the other side of the the end of history. But it surely did not seem that way to participants at the time. People nevertheless continued to teach the occasional constitutional law course back then. (To be sure, constitutional law had not yet begun absorbing much of the available oxygen in American law schools.) One cannot say, in a "people were tough in those days, compared to us softies" way, that those teachers were just acting professionally and didn't talk about their feelings so much--and not just because it is entirely understandable to have strong feelings about Dobbs. They had feelings then, and talked about them, if in a more highfalutin way. My God, did Frankfurter emote! And it should be said that even if one treasures Roe v. Wade, or at least the right it announced, it is surely fair to say that it might have given rise to the occasional twinge of reflection on the role of reasoned elaboration versus taking on the role of a "policy council," to quote one of the people quoted in the Slate story. 

In short, the 20th century alone supplies more than ample evidence that there were contests that all along created a sense of crisis over the feeling that law, or at least the law of the Supreme Court, was the ever-changing product of "politics and power" rather than "law and reason." And I stop with the 20th century only because my own knowledge of the 19th century is not strong enough to rhyme off evidence from that period, the Civil War notwithstanding.

One can argue differences of degree and kind, as I said; and one can argue differences in the surrounding political structure. But I'm not just suggesting that earlier episodes could have given rise to crises of faith about law and the Court. They did give rise to crises of faith. And there were enough of them--crises that we already teach, or are supposed to, or could--that it's surprising that it took Dobbs, or this Court in general, to finally be overwhelmed by the question how or why one teaches constitutional law. One could argue that all this is different, and one could get along fine until now, because those earlier crises ended in the right way. But that was always a bad canned narrative, people have understood it to be such for at least a quarter-century if not all along, and all of this evidence has been and is already available to us. None of this is meant to minimize changes in the nature of politics and political structure that have enhanced one's sense of crisis (also not entirely new, of course) or, more directly, to minimize heartfelt reactions to Dobbs. It's the novelty that's in question.

5) There's not much in here about actually teaching constitutional law. The quoted question with which I began this post is actually a good one: How do you actually go about teaching constitutional law while it is in flux and, on the assumption of the article, the rulings are both explained by politics and under-explained as a matter of legal reasoning? How do you go about instructing them in these circumstances? A perfectly good question, although, again, any tour of conference notes past suggests it's not or shouldn't be a new one.

As it turns out, however, there is very little in the article about that question at all. The questions asked turn out to be more "Why bother teaching it?" or "How can I teach it without despairing?" or "How can I teach these cases when I despise the results?" These may also be important questions, but they're not the same question as the one I quoted or that I rephrase above. 

I would have liked to have seen an effort to answer this other question. It is difficult to teach the law if it changes too often. It is difficult to teach a mode of argument built around history and tradition, neither of which are our field, and hard to do a serious job of evaluating the method and its application in individual cases with any clarity in a 50-minute period. (Or, perhaps, at all.) Of course, one can say very interesting things about history and tradition as a method or methods. But it's much harder, without a pile of evidence, to say something useful about each case, each of which necessarily involves its own pile of materials on history and tradition. One can say what the test is, but so what? (I once tried teaching Heller first in the con law course, as one or two casebooks suggest. It was a mistake. "Which heap of historical argumentation do you credit more?" is not a productive teaching question. A good intro case, even today, should involve a more robust mix and better proportion of different modes of argument.) 

But it should be said that this part of the question is not new either. I cannot say whether it is endemic to law altogether, but it certainly is endemic to constitutional law. Genuine constitutional balancing, of the sort I learned as a Canadian law student, is also easy to describe but also pretty vapid, except insofar as one has skill at reading the mores and assumptions of Canadian judges, which is where all the work is done. We can tell students what Justice Kennedy said in some of his monumental opinions, but the law reviews are full of 80-page monuments, now moldering, to the proposition that it was easier to quote him than to understand exactly what he meant; and, of course, the nature of double helices is also well outside our expertise. In short, it's a general problem. But it's one that certainly also applies to the contemporary Supreme Court.

I grant that this question would not get the attention of general readers like the ones the article actually answered. But it would be of great interest to constitutional law teachers--"thousands" of them, according to the article, but even counting the entire Yale faculty that is surely an exaggeration--including the large number who may have grand and/or angry thoughts about the Court and the law but also have more quotidian concerns about teaching it. Judging by faculty website bios, about as many people quoted in the article do not teach the main constitutional law course or courses as do, although most of them teach relevant related courses. That's fine given the actual focus of the piece, but it's unfortunate that more workaday con law professors weren't sought out and quoted. They might have reframed the question. They might have the same concerns and they might not. They might have the same answers to the question--but they might also have some novel or unexpected ones.  

Posted by Paul Horwitz on October 6, 2022 at 12:53 PM in Paul Horwitz | Permalink

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