Why impose a course on constitutional law on our students? Because it is very useful for lawyers to know about it, contrary to Sandy's assumption
SLevinson at law.utexas.edu
Mon Jul 9 18:46:40 PDT 2007
I'm grateful to Michael for his thoughtful comments. I do agree that the most likely area of constitutional law for non-criminal lawyers is the dormant commerce clause, which, I believe, is increasingly going the way of state taxation of interstate commerce in disappearing from the standard syllabus (or maybe I'm simply projecting way too much!).
The real question, of course, is tradeoffs. Is it more important, in an introductory con law course, that students learn how slavery was thorougly integrated into American constitutional law--enough so that one should seriously consider the proposition that Dred Scott was rightly decided--ot to omit any real discussion of slavery, or of the constitutional theories underlying secession, prevention of secession, and then "reconstruction"--or that they should be given the tools (which I still believe that very few of them will ever in fact use) to construct a well-pleaded 1983 case?
And, riding my own latest hobbyhorse, should we take some significant time to discuss the "hard-wired" Constitution, that will never be the subject of litigation, or simply continue to omit it?
From: michael curtis [mailto:curtism at bellsouth.net]
Sent: Mon 7/9/2007 8:31 PM
To: Sanford Levinson; Con Law Prof list
Subject: Re: Why impose a course on constitutional law on our students? Because it is very useful for lawyers to know about it, contrary to Sandy's assumption
Sandy's conclusion --about teaching historical context--is correct. He has
been a leader in this and has certainly had great influence on me--though I
doubt how well pure chronology works for teaching the areas of con law so we
have followed a more mixed approach. See Con Law in Context. Of course,
the problem is context takes more space. Another problem is that the
typical survey course has removed an important part of con law from what is
taught to most students--free speech, press, etc. This of course is a
disgrace. Sandy is also right I think that con law is crucial for
citizenship in a democracy--another reason exporting free speech from what
most students take is a disaster.
Sandy's premise as to the uselessness of con law for lawyers only shows that
Sandy has led a shelted life. I periodically get calls from former students
with con law problems. Lots can arise in criminal defense--and beyond just
crim pro. A lawyer for Reynolds told me he thought con law was entirely
useless when he took it and that now it is much of what he does. Any 1983
tort action involves some understanding of con law. Criminal defense
lawyers in NC at least are periodically involved in obscenity defense &
often have selective prosecution issues. A lawyer representing a
reflexologist needs some understanding of con law when confronting an
ordinance or proposed ordinance that would ban massages of persons of the
opposite sex--not that the understanding would certainly produce a winner
but understanding ideas like overinclusiveness--translated into
English--would be helpful in arguing before e.g. a city council. And of
course needs to understand that state constitutional claims are a
possibility and don't always follow in lockstep. Preemption of course is
everywhere and now the commerce clause raises all sorts of live questions in
every day criminal defense. I know a lawyer who made lots of money based
on understanding the dormant commerce idea. Then of course people have been
sensitized to state con law if the course is taught right. One could go on.
And on. It seems to me that this is an example of how the academy is
divorced from the practice--even to the curious extent of not understanding
how important what the con law teacher teaches can be to the "ordinary"
lawyer. So having led a shelted life, the con law teacher devalues the
practical importance of what she or he is doing. Odd. But of course, the
less aware one is of the connection to law practice, the less connection
there may be--see e.g. exporting free speech from the basic course or
ignoring dormant commerce or preemption.
----- Original Message -----
From: "Sanford Levinson" <SLevinson at law.utexas.edu>
To: "Con Law Prof list" <conlawprof at lists.ucla.edu>
Sent: Monday, July 09, 2007 3:56 PM
Subject: RE: Why impose a course on constitutional law on our students?
> This comes under the category of shameless self-promotion. Our
> colleague Malla Pollack has founded a new (online) law review, the
> American Justice L. Rev., and the first issue includes a piece of mine,
> "REFLECTIONS ON THE ROLE OF CONSTITUTIONAL LAW IN THE LAW SCHOOL
> CURRICULUM." It can be found at
> To make a longish story short, I argue that there's no good reason to
> require constitutional law (as is done at most law schools, save for the
> University of Chicago) in terms, e.g., of preparing students for the
> bar--we don't teach lots of subjects that are covered on the bar--or
> preparing students to practice law--most of our students will never have
> a constitutional law case in their entire careers, though they are
> likely to have lots of cases in subjects that we don't require, e.g.,
> family law. So, if there is a justification for requiring
> constitutional law, as I think there is, it is to prepare them to be
> good citizens and civic leaders. But it should be obvious that
> preparation for that role does not require that our students learn the
> latest three- and four-part tests or most other contemporary doctrine.
> Not surprisingly, I argue that it does require an historical overview of
> American constitutional development (which can be taught, normatively,
> as a story either of decline or progress, or neutrally as the way that
> the Constitution, for better or worse, has actually developed over the
> past 220 years) and paying far more attention that we now pay to what I
> have come to call the "hard-wired Constitution." Indeed, not to put too
> fine a point on it, I think that the legal academy is criminally
> negligent in failing to teach our students about what are in fact the
> most important parts of the Constitution (which, of course, are never
> litigated and most of which raise few questions of "interpretation" the
> way legal academics define such questions).
> Obviously, I would be delighted to read any responses, on- or off-line,
> to my arguments, which are, just as obviously, meant to stir up a debate
> (and not only to promote sales of my book and adoption of our casebook
> :) )
> To post, send message to Conlawprof at lists.ucla.edu
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