I have seen this topic discussed on several blogs lately (an example, with other links), but I think Lee Epstein (USC) in The New York Times is correct in noting that this is a "teachable moment" for elite law professors and lawyers, though, sadly, the Times doesn't report the relevant lesson, though I suspect this is the one she had in mind: namely, that in cases like this, the Supreme Court acts as a super-legislature, making decisions driven by preferred political outcomes, rather than by law. The mistake of most legal scholars was to think that settled precedents, the fact that omissions can of course produce effects, that healthcare is obviously a national market, that there are large economic consequences that flow from failure to have insurance, and on and on--the mistake was to think that these considerations would dictate the decision of the super-legislature, as opposed to the political ideology of the justices. Perhaps at the end of the day, it will turn out that the law does check political ideology, but if it does not, then the "teachable moment," including for the public, will be that appointments to the Supreme Court should be vetted in public as they are in private: namely, on the political and moral merits of the candidate, with "legal skill" coming a distant third as a relevant consideration.
UPDATE: A well-known public law scholar (who would be familiar to every reader of this blog, but who had reasons for asking that I post this without attribution) writes:
"In cases like this"? You presuppose that in other cases (many cases? most cases?), the Supreme Court *is* driven by "law," which I think is ridiculous. And not because I don't believe that law can and should decide cases. But the Supreme Court is different and always has been. Certainly there are cases where the Justices don't care enough to push a political agenda or where ideology isn't an important factor. Of course, that is also true for legislation--which is why the point defenders of the Court so often make, that the vast majority of cases are unanimous or not close, is misplaced. The vast majority of laws pass the legislature unanimously or all but unanimously. But whenever it counts--and not just high political controversies like health care, but on any issue with general political significance--the decisions are all and only about ideology.
The difference between this Court and past Courts is not its willingness to let ideology and politics drive the decisions. It is that *this* Court is the absolute nadir in American history in the extent and nature of the actual political experience of its members. Smarts don't help or matter much on the Supreme Court. It's all about judgment. But judgment is best if informed by experience, and political judgment requires political experience. The Supreme Court used to filled with former governors and senators and cabinet officials: people who had been in the real thick of political decisionmaking, with real responsibility. Independence worked quite well when people came with political experience: the Justices could use their nuanced understanding of how things worked to temper their judgments. But as we made the Court more important over the past generation, we made it impossible to put anyone on it who had actually done anything other than succeed as a technical lawyer. O'Connor was the last Justice with any serious experience in actual politics. So the present Court operates as ideologically as any in the past (maybe more), but it's a bull in a china shop--blindly flailing, assuming they have a clue what they are doing, mucking things up. They live in a bubble. That's a good thing when the people there have real experience in the world to draw upon. It's a disaster when they don't. That's what we're seeing.
ANOTHER: Tobias Wolff (Penn) writes:
The following is obvious, and implicit in your post, but you do not state it in so many words. Despite the penchant of many law professors for flights of theoretical fancy, I think that what most do when asked their view about the likely outcome of a case is to offer an analysis based upon the best interpretation of existing case law. There are obvious exceptions -- no law professor would content herself with saying that the Texas affirmative action case is going to be decided on the basis of a simple application of Grutter and Gratz. But because many of us resist the idea that you set forth in your post about the political nature of the Court's decisions, we willfully (if sometimes unconsciously) impose upon the Justices a mindset of good-faith reasoning from articulated principles, rather than a mindset of political preference.
The constitutionality of the ACA under existing Commerce Clause and Necessary & Proper jurisprudence is so obvious that it is almost embarrassing to have to insist upon it. As I observed to a friend of mine recently: "Congress enacted this comprehensive legislation as an exercise of its power to regulate national and interstate commerce. If the Supreme Court strikes down the law, it will throw an entire major sector of our economy into turmoil. Q.E.D." It requires intense cognitive dissonance to afford the Court a presumption of good faith and seriousness in their role as judges and yet to recognize that they might use this case as the occasion to upend two centuries of precedent because of their political objections to the resolution of this social and economic problem. Most humans try to avoid cognitive dissonance, and most law professors shy away from cynicism. Hence the gap between law professor predictions and the actual course of the arguments.
That's the title of this interview with a Paris-based magazine (but one mostly written by Brits), but which several of my law colleagues here and elsewhere found interesting--it's mostly about philosophical topics, but also some jurisprudential ones. In any case, I hope it might interest some readers. The interviewer was extremely well-informed; it was easily the most rewarding interview I ever gave.
American legal education is in crisis. The economic downturn has left many recent law graduates saddled with crushing student loans and bleak job prospects. The law schools have been targets of lawsuits by students and scrutiny from the United States Senate for alleged false advertising about potential jobs. Yet, at the same time, more and more Americans find that they cannot afford any kind of legal help.
Global capitalism is in crisis, and some law schools may be too (perhaps deservedly so), but it's just a massive non-sequitur to infer from the facts that some law schools have been sued (in lawsuits of unclear merits), that many law school graduates are unemployed, and that we need more affordable legal services for more people that legal education is any kind of crisis as all. Can the NY Times editorial board really believe that a change in law school instructional methods will affect the availability of new jobs for lawyers, whether in the private or public sector? That jobs will emerge from thin air to reward the newly-minted, deserving, and suitably re-educated young lawyers? Apparently so!
Addressing these issues requires changing legal education and how the profession sees its responsibility to serve the public interest as well as clients. Some schools are moving in promising directions. The majority are still stuck in an outdated instructional and business model.
Actually, no: "changing legal education" will make as little difference to these issues as "changing medical education" will solve the problems facing American healthcare. The collapse of a meaningful and well-funded public sector, spiralling costs of essential services (whether legal or medical or educational), and dramatic inequalities in American life are all artifacts of the neoliberal paradigm that has defined the last thirty years. The Times should get back to chiding Obama for being the latest Democratic aider and abettor of these neoliberal trends!
The problems are not new. In 2007, a report by the Carnegie Foundation for the Advancement of Teaching explained that law schools have contributed heavily to this crisis by giving “only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.”
Actually, the Carnegie Foundation report did not attribute any of "this crisis" to the current structure of legal education. It did call for better skills training and more clinical opportunities--in order to improve the quality of education--but it was not, thankfully, in the grips of the Times's peculiar fantasies about cause-and-effect. (Wouldn't it be grand if changing the law school curriculum could solve all the problems the Times identifies?)
Instead of a curriculum taught largely through professors’ grilling of students about appellate cases [i.e., "the Socratic method"], some schools are offering more apprentice-style learning in legal clinics and more courses that train students for their multiple future roles as advocates and counselors, negotiators and deal-shapers, and problem-solvers.
The "Socratic method" of legal instruction has been in declining use for forty years (thank God!)--somehow the editorial board of the New York Times missed that--and every law school offers substantial clinical opportunities--some schools have even taken to requiring the latter, which seems to me a mistake, given the diversity of tasks that lawyers perform (some will never set foot in a courtroom, some will never negotiate a deal, some will never write a brief, some will never conduct a regulatory compliance review, and so on). And beyond the first year, of course, almost the entire curriculum is elective, so that students have the freedom to design the course of study they want, not the one the New York Times imagines. An editorial about the law school curriculum ought, one might hope, be based on some actual idea of what it looks like.
But the Times is taken with the idea that what ails the American legal profession is traceable to poor old Langdell:
In American law schools, the choice is not between teaching legal theory or practice; the task is to teach useful legal ideas and skills in more effective ways. The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth.
That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems. In reforming themselves, law schools have the chance to help reinvigorate the legal profession and rebuild public confidence in what lawyers can provide.
It's been a bad week for Langdell in The New York Times! He did think the key to a scientific study of law was the "case method," but not because it taught "legal reasoning" (though it could help with that), but because it allowed one to discover the basic principles of law in each field. That "vision" was not dated by the 1920s--an allusion to American Legal Realism, I suppose--but it was altered: whereas Langdell gave us Cases on the Law of Contracts, the Realists added "Cases and Materials" to the standard law school coursebook, premised on the (correct) idea that without knowledge of surrounding historical and social circumstances, as well as prevailing economic and business practices, one could not understand the evolution of the law or the actual significance of court decisions. But the Realists, like Langdell, aimed to teach students the law: indeed, it surely bears emphasizing that the Realists (unlike the editorial writers for The New York Times) were overwhelmingly lawyers immersed in the world of practice and sensitive to how the law and courts really operate.
No one in the history of American legal education ever believed law was "an end" rather than "a means," perhaps because it's not even clear what it could mean to believe the former. What everyone from Langdell onwards did believe was that there was something to learn about the law and legal institutions that could be taught in law schools. And it turns out they were right. Indeed, if the editorial pontificators at the Times had even a minimal amount of knowledge about law and legal education, they would know that in England, the Langdellian vision of legal study remains intact, without even its Realist modifications, and yet somehow the English legal system carries on, rather well even. Why isn't English legal education "in crisis"? Probably because it's cheaper (in part because it involves far fewer clinical opportunities) and it's an undergraduate degree--the latter a real reform that perhaps deserves some serious discussion. And perhaps, too, because newspaper editorialists there are better able at discerning the real causes of economic malaise.
This is the text for a public lecture I will give at the end of the month at the University of Alabama, that deals with some familiar meta-ethical issues in, I hope, a non-technical way, and without getting bogged down in the unfortunate tendency of much recent philosophical work, in which the semantic tail wags the metaphysical dog. The abstract:
Over the last 250 years both moral philosophy and ordinary moral opinion have witnessed a remarkable expansion of their conception of the “moral” community, that is, the community of creatures that are thought entitled to basic moral (and ultimately legal) consideration--whatever the precise details of what such consideration requires. "Being human" is what matters now in terms of membership in the moral community, not race, gender, religion, or, increasingly, sexual orientation. (Species membership—hence the “being human”—remains a barrier to entry, however.) How to explain these developments? According to “Whig Histories,” this is really a story of expanding moral knowledge. Just as we discovered that the movement of mid-size physical objects is governed by the laws of Newtonian mechanics, and that those same laws do not describe the behavior of quantum particles, so too we have discovered that chattel slavery is a grave moral wrong and that women have as much moral claim on the electoral vote as men. I argue against the Whig Histories in favor of non-Whig Histories that explain the expanding moral community in terms of biological, psychological, and economic developments, not increased moral knowledge. If the non-Whig Histories are correct, should we expect the “species barrier” to membership in the moral community to fall? I argue for a skeptical answer.