Balkinization

What Some Constitutional Law Students are Thinking

Mark Graber

Grading constitutional law examinations provides an interesting window into what students are thinking and not thinking. As is the case with most professors, I find grading rather tedious, save for the occasional amusing mental typo. This year’s winner, on an examination that was quite good, was "the theory of the unitary executive gives the president the power to lead a rebellion against the United States." I hope no one tells Dick Cheney. Still, several points might be of broader interest and do not seem to be a violation of confidentiality.

The two questions that provoked the most dispute were over a law that required doctors to charge $200 for an abortion and a proposal to make the main room at a university an exact replica of the Sistine Chapel. Students got full credit as long as they used the "undue burden" standard for the first and for the second wrote something like "must have a predominantly secular purpose as seen by an objective observer." Still, the disagreement was rather vigorous. To some students undue burden and religious purpose were obvious. To others, the contrary result was as obvious.

I also asked the students to write a short essay on what case, presently good constitutional law in the United States, they would most like to see overruled. The number 2 choice, not surprisingly, was Kelo, the case in which the Supreme Court permitted New London to use the power of eminent domain for economic development. The number 1 choice, surprisingly, was Van Orden v. Perry, a case about whether the Ten Commandments could be placed in a public park outside the state capital in Texas. Not surprisingly, a number of students wrote about abortion, either giving reasons for overruling Roe v. Wade or Carhart v. Gonzales. Hardly anyone wrote on race and only one student on affirmative action.

Thinking about the choices, I suspect many students went for safety rather than political commitments. In public debate, we rarely use terms of opprobrium for persons who have strong feelings about the meaning of "public use" in the Fifth Amendment and classroom debates over constitutional "interior decorating" seem both remarkably civil and unrestrained. By comparison, generating any classroom discussion about race, one way or another has gotten increasingly difficult. No one wants to be seen as either a radical or a bigot. Perhaps, if my examinations are any indication, the real challenge on Martin Luther King Day is to find ways to teach students with different beliefs on race policy how to talk to each other

Posted 11:57 AM by Mark Graber [link]

Comments:

Professor Graber:

Thinking about the choices, I suspect many students went for safety rather than political commitments. In public debate, we rarely use terms of opprobrium for persons who have strong feelings about the meaning of "public use" in the Fifth Amendment and classroom debates over constitutional "interior decorating" seem both remarkably civil and unrestrained. By comparison, generating any classroom discussion about race, one way or another has gotten increasingly difficult. No one wants to be seen as either a radical or a bigot. Perhaps, if my examinations are any indication, the real challenge on Martin Luther King Day is to find ways to teach students with different beliefs on race policy how to talk to each other.

This is all very familiar.

When I attended law school a decade ago, we had some fairly lively debates in class, which I attributed to a blind grading policy.

However, a blind grading policy will not protect a student if the test question addresses a hot button issue. Homosexual marriage was a hobby horse for my family law professor and he posed a question asking us whether failing to recognize homosexual marriage was constitutional. This was prior to the Romer decision. Consequently, I applied the then current law, discussed why homosexual unions and marriages were not similarly situated and answered the question no. My honesty earned me a pretty substandard grade.

I can well understand why your students might be shy about giving a non-PC answer on tests.

# posted by

Bart DePalma : 12:26 PM

My honesty earned me a pretty substandard grade.

Because it couldn't possibly have been a substandard answer.

# posted by

eric : 12:52 PM

"Bart":

Did you distinguish the aptly named Loving v. Virginia? Happy MLK Day!

Cheers,

# posted by

Arne Langsetmo : 1:09 PM

arne:

Actually, I did distinguish Loving in the answer, which is very easy.

# posted by

Bart DePalma : 2:52 PM

"Bart":

How so, then? Tell you what, post it on your blog and I'll go read it there. Up your traffic counts 100% too.

Cheers,

# posted by

Arne Langsetmo : 3:19 PM

Mark Graber is one of the brightest and most provocative law professor-political scientists around. Any one who has heard him "live," as I did at the annual meetng of the American Society of Legal Historians in Phoenix last autumn, will attest to his willingness to ask difficult historical/legal questions, and pose unusually provocative answers.

But instead of responding to his brief essay, Bart DePalma weighs in with more of his tedious political rantings.

If "Balkinazation" is an unintended consequence of Jack Balkin, another such consequence---completley unintended--- is that this bolg has become a platform for the highly personal political views of Bart DePalma.

# posted by

dah : 5:43 PM

A conservative friend who attended Columbia recently told me that he thought liberalism was actually a kind of "gotcha" that professors could use in exams; because most students were liberal, they would be blind to conservative arguments and would lose points for failing to make them. After all, a lawyer has to be able to argue both sides, if only to be prepared to rebut the opposition. I don't know if this is true, but he at any rate attributed part of his (top 10%, law review, now working at a top 5 firm after an excellent clerkship) success at law school to being a conservative and thus having powers of argument developed that were rewarded -- not punished -- by professors, including ones who were very liberal in their own politics.

But perhaps it was different at Bart's law school. Also, while my friend isn't supportive of same-sex marriage and is extremely opposed to having homosexuals' civil rights enacted by courts, he doesn't betray any animosity or disgust toward homosexuality itself. I can imagine a professor might find such sentiments to be rather poor argument and mark down for them.

# posted by

PG : 6:37 PM

Ironically, I have my con law exam tomorrow. Another reason that I'd like to bring up, in my own experience, is the issue of perceived complexity. I would be more likely to choose Kelo over, let's say, Gonzales v. Carhart, simply because my own con law professor has gone into the depth and intricacy of the latter decision (and the arguments behind and preceding it) a lot more than she has into Kelo. So, on one hand, the issues appear to me to be easier, and on the other, even if they aren't as easy, I have plausible deniability for the arguments I miss in my answer (whichever side I pick): 'we never covered that argument in class.' So, though I know she would like Carhart overturned(as would I), there's a good chance I'd just pick Kelo anyway so I don't miss any of the material we've covered...

# posted by

Craig : 8:12 PM

I agree with Professor Gruber's thought that people shy away from any kind of serious race discussions, but Bart DePalma's post, while borderline irrational, does represent a real fear among some students.

If presented with "any" decision to overrule, why risk a 1-5% chance that your professor might have some adverse reaction to your piece (even a subconscious one) and correspondingly dock your grade by some increment. It's just some kind of unnecessary risk, particularly on an exam where you have just a few moments to choose where to take the exam answer.

I did have a couple classes in law school that actually produced some good and honest discussion of race, but it was fairly rare. The Professor has to consistently run a class with fairly vigorous discussion, has to at least appear in class as neutral (I don't mean they have to be neutral or a Professor's leanings should be secret, but in class the Professor ought to make the conservative/liberal arguments in equal time and with equal ferocity). Finally, the Professor ought to use a little discretion when beginning discussion and selecting students who are likely to make the best arguments and do it in a serious way. Once it gets going those are the best chances.

# posted by

Chris : 10:27 PM

Some of these comments are why, when I ask a "policy" or "how would you rule on this decision on appeal" sort of question, I make it clear that I want the student to articulate the strongest arguments on *both* sides of the question. Just saying, "it was WRONG because. . . ." can only earn half credit, max.

I should note that I'm not granting that any significant number of law profs grade on the basis of their own personal policy preferences. I personally genuinely believe they don't. But some students have that fear, and I don't want them worrying about it. And students should be able to articulate the best arguments on both sides anyway, even if they are personally fierce partisans.

# posted by

jslater : 10:18 AM

"[T]he Professor ought to make the conservative/liberal arguments in equal time and with equal ferocity"

Regardless of the relative merit or vacuity of those positions?

# posted by

ADamiani : 11:35 AM

jslater:

And students should be able to articulate the best arguments on both sides anyway, even if they are personally fierce partisans.

Indeed, if they want to be good lawyers. They should be able to argue the best case for both sides (generally something got into court and got accepted for appeal because there was some merit to both sides of the argument). Even if they have the desire (and the ability) to choose their clients and to represent only the side they feel ideolokgically attuned to, they damn well better know what the other side will argue and why, and the reasons that such an argument might find an attentive ear with the judges.

I remember arguing Adarand v. Pena in moot court, and one of the moot court judges (also a judge in real life) came up to me afterward and asked me if I really was in favour of the position I'd argued (Adarand's). She also told me I'd have to cut my hair. ;-) That's how it should be; if you want to be a lawyer, you need to have the tools, and one very important one is to understand the arguments, and to be able to use them persuasively....

Cheers,

# posted by

Arne Langsetmo : 12:00 PM

My honesty earned me a pretty substandard grade.

# posted by Bart DePalma : 12:26 PM

I seriously doubt it was your honesty. The fact that you're a lawyer is a pretty sad commentary on the legal profession.

# posted by

Bartbuster : 12:13 PM

Is Korematsu still considered good law? Cuz that I'd like to see reversed.

# posted by

Pacanukeha : 12:29 PM