Comparative Constitutional Law

[Sanford Levinson]

I agree with Eugene that historical research is probably marginally easier
than first-rate comparative research.  But I think it's also true that
American law schools--and I confess I know of no exception to the
generalizations that follows--do an absolutely terrible job at preparing
their students to do anything other than crunch cases.  That is, if history
is (at least) as important as Eugene suggests, then one might expect every
law school to make sure that its students have some basic competence in
doing historical analysis.  Most law schools, including my own, seem ever
less concerned whether their students have even taken any undergraduate
courses in history, let alone whether they've taken any courses in
historiography, methodology, etc.  (A personal note:  More than one person
has told me that (s)he really likes our casebook but that it is
unassignable because it simply demands too much historical knowledge from
the students.)

One "merit" of Scalian textualism as an approach, incidentally, is that it
doesn't require any such historical knowledge, though, obviously, there are
other problems. One reason offered for the rise of "new criticism," which
was highly text oriented, in English departments after World War II was the
entry of vast new numbers of students, many of them financed by the GI
Bill, who had not received "classical" educations.   Might one also
(uncharitably) suggest that one attraction of economics is that one really
doesn't have to know very much in order to do it (reasonably) well?  Begin
with a few (more or less plausible) assumptions and sit down in one's
armchair working out the implications.  Empiricists, of course, have
leveled the same charge at certain lawyers.  What we're talking about, at
bottom, is whether legal analysis must necessarily include at least one
"and," whether it's history, linguistics, economics, philosophy, or
whatever, and what standards we should be held to when doing the "and."

Sandy