Friday, April 18, 2008

Why Constitutional "Law" Should Not Be Taught in Law Schools

Brian Tamanaha

It sounds absurd to suggest that Constitutional Law should not be taught in law schools--guffaws echo throughout law school land at the suggestion. But hear me out.

First note that, unlike other law school subjects, many leading constitutional scholars are not law professors, but professors in politics departments (take Gillman, Graber and Whittington, for example, from Mark's post below). The constitutional analysis produced by law professors is virtually indistinguishable from that produced by politics professors: same terminology, same theories, same journals, same case discussions, same intellectual terrain. When sociologists study law from a sociological perspective (or when political scientists apply quantitative methods), in contrast, they are not doing the same kind of analysis as legal scholars--hence these two perspectives rarely engage. The overlapping discourse of politics professors and law professors says something important about constitutional law: it is not distinctively "legal" in the way most other legal subjects are.

The fact that constitutional law can be taught in colleges is not a reason to take it out of law schools, of course. Here is the reason: constitutional law is the most prestigious field in the legal academy; when thinking from this field leaks into other areas it produces a distorted understanding of law and of legal argumentation. Most legal subjects revolve centrally around legal rules and concepts. Constitutional law is much more open. The difference is a matter of degree, but the degree of difference is substantial. Applying constitutional ways of thinking (modes and standards of constitutional analysis) to other areas of legal analysis, for this reason, is a mistake.

Let me give an example. Mark says below that he finds nothing out of the ordinary about John Yoo's constitutional analysis, noting that "the arguments seemed no more or less scholarly than the constitutional theory in the average top-twenty-five law review." Perhaps. This does not, however, bear on the propriety or plausibility of the non-constitutional analysis of the Bybee Yoo Torture Memo. The analysis relating to the meaning of "torture" was statutory, not constitutional, and the applicable standards differ accordingly. Mark knows the difference, so I am not saying that he failed to recognize it--but I am saying that it is easy to forget. More important, students may fail to appreciate the difference if they are not reminded of it. Students who learn that constitutional law is infused with politics (though it cannot be reduced to that) might wrongly come to think that all law is like that, an easy error to fall into because constitutional law has so much prominence and attention within the legal academy.

Twenty years ago a few people suggested (rather hysterically) that adherents of Critical Legal Studies do not belong in the legal academy because their skepticism undermines law. Perhaps the bigger threat to belief in law comes from constitutional law professors whose skepticism about the legal component of constitutional analysis infects other areas of law and legal analysis.

P.S. I confess: it is a ridiculous suggestion, offered in jest (and with apologies to fellow Balkinizers, several of whom are important constitutional law scholars). But there is a serious point here.

[Type the rest of your post here.]


Good point about the statutory analysis, Brian. However:

"Mark says below that he finds nothing out of the ordinary about John Yoo's constitutional analysis, noting that 'the arguments seemed no more or less scholarly than the constitutional theory in the average top-twenty-five law review.' That's no doubt correct."

I doubt that it's correct. Why do you and Mark not doubt it?

Professor Tamanaha:

I would suggest that you make a good argument for removing the politics and sociology from interpretation of the Constitution rather than a reason to remove the Constitution from the study of law.


You are right--I do have doubts, so I'll change it.


I agree with the thrust of your point. Good arguments can be made that there is much less politics in Constitutional analysis than we typically assume. I lean in that direction, but it would be too involved to get into here (I take this up more in my Law as a Means to an End). Perhaps another day.


Maybe the problem is the ordinary constitutional analysis. For example, the intersection with international law appears to be barely covered or is covered as US foreign relations law. Like that was the end of the inquiry. It is the beginning.

I'm not sure what limits there are to the scholarly interests of professors of politics, but you may want to include historians and political theorists among those whose subject areas overlap.

First note that, unlike other law school subjects, many leading constitutional scholars are not law professors, but professors in politics departments (take Gillman, Graber and Whittington, for example, from Mark's post below).

You left out another contributor, Kim S. Strictly speaking a sociologist, but her cv lists some poli sci time too I believe....

It's not a good reason to keep Con Law out of the curriculum, but it's a good reason not to put it in the first year, especially the first semester. In fact, similar reasoning is why George Mason puts off Con Law until the second year (or at least why some of us think it's a good idea that we do).

Many of us took a federal tax course in law school. (It was an elective course for me back in 1952-53.) Some of us pursued an LLM in Taxation, which back in the 1960s was one-year full-time, three-years part-time. Federal tax law is complex and fast changing, both statutorily and case-wise, what with so many tax laws enacted since the 1954 Code, many containing the word "reform" in their titles.

Perhaps Con Law should be pursued in a special LLM program (is such available presently?) since one semester of Con Law in this day and age is inadequate. (Or does Con Law run two semesters currently at some law schools?) Con Law has been fast changing not because of amendments to the Constitution but because of interpretation. (Here we go again with the originalists versus the living constitutionalists.) If Con Law were to be designed into an LLM program, how might it be structured? How much interest would there be in such a program from the standpoint of professional advancement (outside of a career in academia)? The LLM in Taxation can be a valuable market place addition to a young lawyer's resume. Might the same be said of an LLM in Con Law?

Con Law should not be taught until the third year (and if I had my way, there would be a fourth year added to the curriculum devoted entirely to legal ethics! I am tired of the academy turning out Cromwell clerks like some we have seen on the national stage mis-using the law and indeed showing contempt for it)

Not that it would do any good, but at least we would have tried.

Balkinization, I'm a reader from Bogotá Colombia and also I'm a constitutional law proffessor at the Externado University at Bogotá... I think you are right about the topic of constitutional law taught in law schools should be forbidden specially because the things you study maybe won't be as it should be. The constitutional interpretation for example in high courts is a jeopardy and the sentences in the courts could be directed by the argumentation technics... Also the democratic part of the speciality must of the time is a fake and you finish teaching lies to your students... I have a legal theory blog... hope you see sometime sorry is in spanish...

Pd sorry for my english
Gonzalo Ramirez

I am appalled and sick at heart at the provincial character of posts by several law professors on this blog. The fact that one of their "brethren" has been threatened with a loss of tenure seems to have disabled the posters' critical faculties.

Whether Yoo's "constitutitonal analysis" OR his "statutory analysis" in the torture memos was ordinary is simply irrelevant to the underlying reason that his critics would remove both his tenure and his license to practice law.

John Yoo has:

1) disgraced the legal profession;
2) disgraced the law schools in which he has taught;
3) disgraced the professors who taught him at Yale Law School and Harvard College; and
4) from the evidence available, participated in a conspiracy to commit war crimes that could result in conviction under the legal standards adopted in the prosecution of lawyers at the Nuremburg trials.

John Yoo's critics - of whom I am but a minor one - are not seeking to have him brought to judgment for advocating a unitary executive, nor for advocating expanded powers for the executive branch in war time. We are not even seeking to have him brought to judgment for apparently endorsing David Addington's opinion that many of the protections of the Geneva Conventions are "quaint."

John Yoo is accountable for his actions and for the intended consequences (if unlawful) of those actions - i.e., for the creation of false and fraudulent legal opinion(s) that government officials who authorized and/or committed war crimes could invoke to avoid accountability for their crimes against both the laws of war and against humanity.

Can John Yoo be excused because of the national crisis he, David Addington, and others MAY have thought was upon the U.S.? No. Torture and inhumane treatment are ALWAYS against the laws of war - AND against federal statutes. And creating an approved regime of using torture routinely, whenever an interrogator thinks it may be necessary, cannot be tolerated by any civilized nation today.

There is a critical distinction between finding circumstances where committing a crime MAY be the "lesser of two evils" (e.g., the infamous "ticking time bomb" scenario) and thinking that torturing a suspect is NOT A CRIME.

As long as an interrogator recognizes that torture is a crime, s/he will decline to use torture unless there is a very good reason to believe that the specific person to be tortured knows something so important to saving particular set of people that the interrogator may think that "civil disobedience" - here, breaking the law against torture - is required. No one who recognizes that his chain of command considers torture to be a crime is going to use torture routinely or to resort to torture lightly.

The crime of the "torture memos" - a crime that John Yoo may be liable for - was that these memos created a regime that enabled the use of torture routinely, a regime that encouraged interrogators to act as though torture was no longer a crime.

Scott Horton's piece of two weeks ago at eloquently emphasizes this point in paying tribute to Matthew Diaz, a brave lawyer who is paying a heavy price for engaging in civil disobedience. See

Christopher Edley, Dean at Boalt Hall, appears to be totally out of his depth in his refusal to consider an investigation into Yoo's fitness for tenure. He is failing to understand what the issue is here.

A professor who has committed an act of moral turpitude has his tenure stripped. If the act of moral turpitude is a crime, the school does not have to await conviction in a criminal court before it strips the offending professor of tenure. If a professor has committed date rape, for example, the school does not have to force the rape victim to go through proceedings in a criminal court and have a jury find the professor guilty in order for the school to remove the professor from the faculty.

Likewise, a school has no legal obligation to a professor who has committed war crimes in violation of international law to await a judgment of conviction before it investigates and determines whether the tenured professor has committed crimes of moral turpitude.

Waterboarding has been recognized as torture for five centuries. U.S. military tribunals convicted Japanese military personnel of war crimes for waterboarding American soldiers in WWII. U.S. soldiers were court-martialed for waterboarding suspects in VietNam. A federal court in Texas in 1983 convicted a county sheriff of criminal violation of a suspect's civil rights for waterboarding the suspect. Another report says that a Texas sheriff was convicted of waterboarding and sentenced to ten years and then-Governor Bush refused to pardon him. [That may be a duplicate of the 1983 conviction.]

If John Yoo knew that his legal fictions were intended to authorize waterboarding, he was fully on notice that he was participating in a scheme to authorize war crimes. If he knew that, he does not even deserve to retain his license to practice law, much less to retain tenure in any law school.

So, what did John Yoo know, and when did he know it? Boalt Hall should find out now, rather than risk its own moral authority being stained by its failure to investigate the culpability of John Yoo - an arrogant young man whose success in Ivy League academics made him think that he knew a whole lot more about the real world than he apparently did know.

Argumento, suppose I take the opposite stance.

Elsewhere, Bart quotes Goldsmith's reservation that "Yoo interpreted the torture statute like a regulation and did not consider the balance between national security and the United States' 'moral reputation.'" Yoo cuts himself slack based on a distinction between "law" and "morality" or "mere interpretation" and "policy prescription".

If Yoo made use of a interdisciplinary approach to legal interpretation, he might have recognized that "torture" is probably mostly a political concept (certainly not a medical one, except at the extremes).

As such, he might have understood why the statues might be accordingly vague. He might have questioned why a sudden re-interpretation of broad prohibitions might be required, simply because the U.S. mobilized its armed forces (to Afghanistan).

He might have considered ALL the cases in which torture was prosecuted and he might have worried perpetually about being wrong (as in Hamden-wrong).

Accordingly, rather than the strained opinion Cheney-Addington prompted him to adopt (can we say that, yet?), he might have issued an opinion that the statutes did neither clearly support or deny wide-ranging revisions to practice; and that, if The President felt he required authority for more, he'd need to seek formal (or informal?) clarification from the *full* Legislature (not the easily manipulated "secrecy gang"), rather than 'take chances' in court or risk outrage over detainee treatment (no matter how much FOX "News" might be able to soften the beaches on torture for him).

That's not 20/20. It seems really basic, frankly.

No more tortue with the thoughts of Yohn Yoo and Bee

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