Basic law courses like Con Law and Admin Law are still being taught in law school, alongside courses like Equity Law and Law and Nietzsche, making the job of law professor even more interesting than usual this summer. You see, with the Supreme Court decisions in Loper Bright and Trump v. United States, they’ve got some decisions to make. This comes on the heels of Bruen and Dobbs, where the ink on their updated syllabi is barely dry. Won’t anyone think of the law profs?
After overturning the 40-year-old Chevron deference last week, the justices threw law curricula for another major loop on Monday with their earth-shaking ruling on presidential immunity — all this just two years after Roe v. Wade was struck down after 50 years on the books.
Law school professors have been meeting to discuss the forthcoming changes to their courses, trying to get their heads around the new legal landscape the conservative-leaning court is creating.
One might assume that these academics, most of whom attended the most elite law schools themselves because they are the most elite thinkers in law, are fully capable of reading the decisions, even though they’re quite long and a bit tedious, at least once all the way through, and figuring out the two pressing questions.
“And so, it’s going to be hard to know how to teach this, to know how to teach this to students, because it really requires us to rethink and reframe what we’ve been teaching them all along,” [Claire Finkelstein, professor of law and philosophy at the University of Pennsylvania] added.
The two question prawfs are pondering is whether to include these new decisions in their course and, if so, what to say about them.
“It takes us a while to process the opinion, then we talk a lot about it with our colleagues to try to figure out whether the opinion is actually going to be as consequential as we think it is, and then whether it’s the kind of thing that needs to be in an introductory course, in which case you really have to think hard about how it fits into the curriculum, or whether it’s something that’s for a more advanced class, in which case you might be able to sneak it in under a rubric like contemporary developments or something like that,” said Noah Rosenblum, an assistant professor of law at New York University.
From the perspective of a trench lawyer, the answer is obvious. Teach what lawyers will need to know. Teach what the decisions hold. Teach the ways in which these decisions will be usable for the students who expect to come out of law school with the hope of being lawyers some day. But is that what the prawfs are concerned about?
Professors say it’s par for the course for attorneys to have to deal with ever-shifting laws. And sometimes it’s easy to see which way the wind is blowing, such as when conservatives chipped away at Roe v. Wade over the years before it was overturned fully in 2022.
But they acknowledge that their students, particularly those preparing for the bar exam, can also be thrown when precedent-changing decisions are dropped.
That these law professors are concerned with the nuts and bolts of their students learning the updated law, and unlearning the law they were previously taught, in order to pass the bar, not to mention practice law, is good news.
“For law schools that really have to worry whether their students are going to pass the bar, having constitutional law be a moving target can create challenges, because you might teach it to them in year one, and then essentially in year four or the end of year three, they’re taking the bar exam,” Erman said. “And if a lot has changed since they learned constitutional law, then they both have to learn new material to pass the bar, and they have to unlearn old material.”
But one question remains undiscussed in surveying the impact of seismic shifts in the law. Are they teaching the decisions or are they teaching the hype of the decisions? From all appearances, the legal academy’s view of these decisions borders on hysteria. Then again, the legal academy is overwhelmingly progressive, so there is no surprise here.
Can they overcome their bias to teach their students well? This isn’t the first Supreme Court to wreak havoc with constitutional law. Consider the Warren Court’s decisions in Escobedo, Miranda and Gideon, each causing massive shifts in the law. Then again, these decisions were applauded rather than despised, making the revisions to the syllabi a pleasure rather than a burden.
Will the prawfs teach C.J. Roberts’ majority opinion in Trump, or Sotomayor’s dissent with a smattering of Barrett’s concurrence? Perhaps they will teach it all, explaining the faults of the majority so that students, when they become lawyers, will appreciate where the cracks in the decision are to defend or exploit them, as the case may be.
Or perhaps it will be a discussion about how the Supreme Court authorized presidents to send Seal Team 6 to assassinate their political rivals. It’s up to the professors to figure out what to do, and it might prove very difficult for some to overcome their anger so they can do their job.
Welcome back. Hope you had a great time.
Thanks! Was helping Number One Son with stuff around their homestead, and of course, nothing went according to plan. Improvise, adapt, prevail!
I think med school professors have it worse than law profs: they are not just tasked with teaching old subjects in new ways, but are required to teach altogether new subjects. For example, at UCLA, “Structural Racism and Health Equity” has replaced time once allotted to physiology (according to the Washington Free Beacon).
I have no idea what law professors are paid but I suspect that, along with residuals for required course materials and seminars, the remuneration is substantial. From out here in the cheap seats the response is a cheerful, ” Quit whining and do your damn job!”
“‘the court struck down Chevron, which allowed judges to rely on government agencies when an ambiguous law was sued on the basis of interpretation'”
It’s exhausting that students will have to relearn which of the four branches of government has constitutional authority to interpret laws.
Ah, but the majority made very clear that this was a Section 706 decision, and not a separation of powers decision. It’s exhausting to have to read the opinion, I know.
Fortunately, the vast majority of lawyers will never have to argue in the Supreme Court of the United States. Of those who do, few (perhaps none) will have to deal with issues of presidential immunity. No reason the allegedly earth-shaking decision sould even be the subject of a bar exam question.
Oh, but it will. About a year before I sat for the Bar, my ConLaw prawf stuck his wet pinky in the air and predicted that “National Security Letters” (that is, those warrantless “asks” by the FBI to private businesses for private records) would be on the Bar exam. He prepared our class accordingly.
Turns out the prawf was right. One of the six mandatory essay questions asked about presidential authority to issue an order permitting such letters, whether Congress’s rejection of a similar bill overrode the president’s executive order, and whether the executive order violated the Fourth Amendment.
The sucking sound in the massive auditorium where I sat for the Bar was palpable when everyone but the people who took my prawf’s ConLaw course turned to that particular essay question.
If nothing else, these cases provide an excellent opportunity for all prawfs to teach the Future Lawyers of America that following and applying the law is paramount, bad feelings notwithstanding.*
Strange that administrative law profs would decry the overturning of precedent like Chevron, when Chevron itself played a significant role in Administrative law being re-written every time the White House changed hands. Why is it harder to teach that agencies’ opinions are no longer controlling, for instance, than it is to teach the oscillating admin law surrounding Title IX?
In High School, one moment prepared us for this more than most others. The kids on the debate team were given assignments to defend/challenge the proposition–and someone stated they were against it and wanted to switch sides. The teacher politely informed them they would be in the best position since they knew the opposing side better. But either way, no one was switching because it’s more important to be able to think critically about a topic than to agree with the desired outcome.
I often wonder when the topic of this post comes up, how many people in the formative years they are in school, are actually challenged to think against the grain.
Now they can teach students how to represent that teacher after she gets fired in the wake of an angry social media firestorm for doing it. Wait I mean prosecute.
I suspect that bar exam prep companies are not wringing their hands and crying to the media about how terrible it all is. They are probably figuring out what changes are likely to occur, and then rewriting their materials to reflect those changes. Unlike law schools, bar exam prep companies need to provide a useful service in order to stay in business.
The history professors will surely help out on the new gun cases. Heller, Bruen, and Rahimi will require good lawyers (and trial judges) to understand inter alia the frankpledge system of Canute the Great, the reach of the Statute of Northampton of 1328, what the Protestants did to the Catholics after the Glorious Revolution, and the ordinances of towns and villages in colonial America.
The Court notes that the new rules are a boon to trial judges, who will prove far more adept at detailed historical analysis than they are at weighing the need for regulations against how much harm they create.
I would think that when a good law prof teaches a case. He or she also teaches views of the dissent and those in academia and on the bench who question the decision. When a decision is overturned, there should already be a body of thought surrounding the decision on the syllabus. So with the overturning of Chevron, there should already be substantial pro and contra Chevron thought taught in class.
Law School should not be so much about the rule in a particular case but it should be training for thinking about the rule, how it applies, where it may not, and in some cases, why it should change.