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.