Teaching Bush v. Gore

romberjo at SHU.EDU romberjo at SHU.EDU
Tue Feb 6 12:48:44 PST 2001

Eric Freedman wrote:

 We teach our students to behave as _if_ law matters because that is what
they pay us to do.  In other words, if one is going to try to gain a
certain result from a court, one has to address it in legal terms. Even if
in fact what is going to motivate the court is something entirely different
(e.g. making Bush win), one is not going to gain that result for one's
client by arguing "rule for Bush and that way you can retire to Arizona."

I'm with Sandy on this one.  I don't think that our students pay us to
teach them to behave as if law (and only law) matters, either normatively
or descriptively.  Similarly, if a lawyer is trying to gain a certain
result from a court -- especially in a constitutional case -- she will be
doing a lousy job if she thinks about the case solely from a "legal"
perspective (even though, as Eric notes, she will end up drafting a brief
in largely legal terms).

One of my courses is an appellate clinic in which I supervise students
briefing and arguing on behalf of pro bono clients in the 3d Circuit, often
on constitutional issues.  I spend a great deal of time w/ the students
discussing doctrine and precedent, of course, but we also spend significant
amounts of time talking through other important aspects of winning (and
understanding) actual constitutional cases.  I try to get my students to
realize that there is often more than one analytically coherent argument
that could be made, based on precedent, but that a central aspect of
lawyering -- often neglected in the classroom -- is how to choose among
those arguments, and how to pitch the argument the student ultimately
chooses.  In making such choices, effective constitutional lawyers can and
must consider "non-legal" matters: the composition of the court (or panel),
both as to jurisprudential philosophy and as to raw/low political
inclinations; norms of constitutional decisionmaking and argumentation, and
the historical development of constitutional law, even if not (yet)
reflected in the particular area of precedent; culturally resonant themes
and narratives likely to move the judges emotionally to want to rule in the
client's favor (if not overly constrained by precedent); etc.

The flip side of this -- which brackets the debate about the place of what
might be dismissed as advocacy training in the law school curriculum -- is
that I don't think it's really possible to understand how the law operates,
particularly in constitutional cases, w/o thinking about politics, high and
low.  This doesn't require that large portions of class be devoted to
"extra-legal" matters; it does mean that I can't imagine teaching Bush v.
Gore w/o at least surfacing the issue of the role that low political
preferences may have played (in the US and FL S. Ct. decisions).

-- Jon

Jon Romberg
Seton Hall

More information about the Conlawprof mailing list