Friday, August 10, 2007

Chen contra Paulsen

Nietzsche contra Wagner

Friedrich NietzscheRichard Wagner
Jim ChenMichael Stokes Paulsen
Chen contra Paulsen

I don't miss working at 229 19th Avenue South in Minneapolis, but I do miss having Michael Stokes Paulsen as a colleague. Mike and I have always enjoyed each other's company despite our considerable intellectual and ideological differences. Lazy observers (i.e., people who get distracted by superficial CV entries) have never understood how Mike and I see the world in fundamentally different ways. For readers of MoneyLaw and Ratio Juris, this post should establish at least one vector of sharp disagreement that separates me from Mike Paulsen.

In his 2006 review of Akhil Amar's America's Constitution and Jed Rubenfeld's Revolution by Judiciary: The Structure of American Constitutional Law, Mike "offer[ed] a modest proposal" for reforming the teaching of constitutional law:
Throw out the casebooks altogether and teach the constitutional law course as a Great Books and Great Cases on the Constitution course. Assign The Federalist and Akhil Amar's America's Constitution: A Biography. Then, teach, in detail, only the fifteen or twenty most significant constitutional decisions of the Supreme Court and of the political branches, unedited, as case studies touching on most . . . of the more important subject matter, doctrinal, interpretive, and history-impacting developments in American constitutional law over the course of 200-plus years.
Rick Garnett has endorsed this proposal.

I don't. Mike's proposal makes no sense for the vast majority of law students.

Students
One law school course that comes close to satisfying the Langdellian ideal of teaching rigorous legal analysis through the evaluation of a body of appellate case law is constitutional law. Quibble though we might, the traditional march from Marbury v. Madison and McCulloch v. Maryland through congressional powers, the power of the states to regulate the national economy, separation of powers, the fourteenth amendment, and (perhaps) the first amendment is a reasonably effective and valuable exercise. Students learn something about the Supreme Court and the basic rhetorical structure of constitutional decisionmaking in the United States. They are introduced to a prominent interpretive tradition that bridges the worlds of common law and statutory interpretation.

Other constitutional law doctrines emerge, in various degrees of importance, in other law school courses. Administrative law, criminal procedure, property, and even environmental law devote considerable time to constitutional doctrines. In real life, all of these doctrines appear. They matter. To wit:
  1. Entire areas of legal practice -- family law and education law come to mind -- operate under the shadow of doctrines taught in the traditional constitutional law course.

  2. The single deepest body of cases in the traditional sequence involves a host of related doctrines restricting the ability of states and local governments to regulate (or tax) the national economy: the dormant commerce clause, the privileges and immunities clause of article IV, the equal protection clause (as applied to state laws purporting to regulate basic matters of health and welfare), and preemption. The commercial speech doctrine adds a neat wrinkle whenever government undertakes to regulate labeling, marketing, or advertising. Mike hates teaching these cases; in my teaching days, I loved covering this material. I take refuge in this tiebreaker: This is the likeliest point of engagement between business lawyers and constitutional law.

  3. Learning about constitutional interpretation provides a useful point of comparison for lawyers whose day-to-day work involves so-called common law statutes. Knowing how to read the fourteenth amendment opens the door toward understanding, say, the Sherman Act or 42 U.S.C. § 1983. Again, those are statutes of which entire careers are made.
There is a common thread here: How does the content of law school instruction, within a single course or across an entire 90-credit curriculum, advance the careers of law students beyond graduation? For the vast majority of students, the conventional constitutional law sequence makes more sense than Mike Paulsen's "modest proposal." Remember: roughly 180 out of 195 ABA-accredited law schools have more in common with each other than with the 15 schools that Brian Leiter has tagged as "national" and therefore "elite." All three schools where Mike and I have worked -- Minnesota, St. Thomas of Minneapolis, and Louisville -- are "nonelite" by this definition.

Louisville Law
St. Thomas LawMinnesota Law

Whether law professors, as a matter of personal intellectual satisfaction, would rather teach the Paulsen-Garnett curriculum is utterly beside the point. Indeed, it is a dangerous indulgence. A course called "Great Books and Great Cases on the Constitution" would make a fine "perspectives" course here at Louisville Law. "Perspectives" courses are electives, but we insist that you take at least one before you graduate. And at Mike's alma mater, where one in twelve living alumni is a law professor, perhaps a Great Books/Great Cases approach to constitutional law works just fine. At the least, it works for one-twelfth of the student population. But at a school where the total number of living alumni in law teaching might not reach 12, I'll stick with Constitutional Law Classic. It works, because what most of our graduates do is work.

Yale Law

3 Comments:

Anonymous John Steele said...

I agree that the "modest proposal" is best suited for elite students at elite schools, who have fewer worries about passing the bar and getting good jobs. It's also well suited for the study of law as a course of non-professional studies in a graduate humanities department. For vast majority of law students I don't see how it could be a success.

Here are some modest proposals that might be better suited most schools.

1. Turn to the students who are going into debt and ask them "what kind of instruction matters most and works best for you?" Turn to recent graduates and ask, "what kind of instruction did or didn't work for you?" Turn to slightly older graduates and ask, "what should we be teaching the students today and how should we teach it?"

2. Create an experimental section where some first year courses are taught by lecture and by tests that mimic the bar exam. Monitor what effect if any that has on bar exam results, student satisfaction, etc.

3. Go visit the larger law firms, which almost all have sophisticated introductory courses for their first year associates on litigation or transactional law. Ask to borrow their curriculum for your courses.

4. Try teaching some courses like a business school does and other courses like a medical school does.

8/10/2007 10:08 AM  
Blogger bikemig said...

Jim: Although I agree with your overarching point (that law students should learn con law classic), I disagree on your remedy. Although, as you point out, students at non-elite schools actually practice law, they do more than just work. They are also important cultural cogs in making the Constitution a living institution. Con law classic does a poor job of teaching students the role that the Constitution plays in political life. So my suggestion would be to teach the great books approach the first year (throwing in some comparative constitutional law for good measure) and require con law classic as an upper level course. At the end of the day, our students will play a key role in shaping our institutions as well as working for a living. And we desperately need a more critical attitude towards our Constitution if we are to deal with the problems facing the US. Miguel

8/10/2007 11:46 AM  
Blogger bikemig said...

Jim: Although I agree with your overarching point (that law students should learn con law classic), I disagree on your remedy. Although, as you point out, students at non-elite schools actually practice law, they do more than just work. They are also important cultural cogs in making the Constitution a living institution. Con law classic does a poor job of teaching students the role that the Constitution plays in political life. So my suggestion would be to teach the great books approach the first year (throwing in some comparative constitutional law for good measure) and require con law classic as an upper level course. At the end of the day, our students will play a key role in shaping our institutions as well as working for a living. And we desperately need a more critical attitude towards our Constitution if we are to deal with the problems facing the US. Miguel

8/10/2007 11:47 AM  

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