A defense of realism

[Don Crowley]

To a least partially address Eric Segall's question. In
teaching undergraduate con law-civil liberties classes I try to give roughly
equal time to doctrine-voting patterns-and
political context. I don't spend much time (except anecdotally) on judicial
personalities.  As a social scientist I don't see myself as necessarily
trying to train or prepare future law students but simply trying to provide
the "best" most coherent explaination of how constitutional battles are
resolved.
It is harder for me to answer whether a stronger focus on judicial policy
preferences would be a better preparation for constitutional litigators.
The style of discourse forces a litigator to argue in terms of doctrine.
However, it seems logical to me that understanding voting patterns suggests
who one has a chance to persuade and on what grounds.
Why argue an abortion case on Scalia's turf when all that matters is what
O'Connor or Kennedy thinks is an undue burden?

As an aside I do think that the failure of the legal academy to accept a
realism/attitudinal perspective is a type of turf protection.  If the
explanation for a constitutional decision is legal than we need lawyers to
tell us what it means.  If the explanation is political/ideological than
lawyers,  political scientists and others can tell us what it means.  I get
lots of phone calls from reporters wanting to know about elections (which I
don't teach) and very few from reporters wanting to know about civil
liberties issues (which I do teach).  While I certainly didn't do an
empirical study to confirm it--the number of constitutional lawyers asked to
comment on the Clinton impeachment seemed to far exceed the number of
political and social scientists even though the punch line of much of the
commentary was that impeachment was a political process.

Don


> I think it is interesting that political scientists have long accepted a
> strong realist perspective but the legal academy has not. Is this turf
> protection or is there something else going on? I also wonder if
> the political scientists on this list who teach undergraduate or graduate
> course in constitutional law would like to comment on how they teach their
> courses in light of the realist critique. Do you spend more time on
> judicial personalities and voting patterns than doctrine? And, if so, do
> you think that
> background would serve a constitutional litigator as well as the strong
> doctrinal background students get in the typical law school course. It
> seems to me that if one really accepts the realist critique, catering
> to the judges political preferences is more important than manipulating
> doctrine. I'm asking these questions partly because I'm working on a piece
> on teaching constitutional law from a realist perspective and can use all
> the help I can get.
>
> Eric Segall
> Professor of Law
> GSU College of Law
>