Chen contra Paulsen

Nietzsche contra Wagner

Chen contra Paulsen

I don't miss working at 229 19th Avenue South in Minneapolis, but I do miss having Michael Stokes Paulsen as a colleague. Mike and I have always enjoyed each other's company despite our considerable intellectual and ideological differences. Lazy observers (i.e., people who get distracted by superficial CV entries) have never understood how Mike and I see the world in fundamentally different ways. For readers of MoneyLaw and Ratio Juris, this post should establish at least one vector of sharp disagreement that separates me from Mike Paulsen.

In his 2006 review of Akhil Amar's America's Constitution and Jed Rubenfeld's Revolution by Judiciary: The Structure of American Constitutional Law, Mike "offer[ed] a modest proposal" for reforming the teaching of constitutional law:

Throw out the casebooks altogether and teach the constitutional law course as a Great Books and Great Cases on the Constitution course. Assign The Federalist and Akhil Amar's America's Constitution: A Biography. Then, teach, in detail, only the fifteen or twenty most significant constitutional decisions of the Supreme Court and of the political branches, unedited, as case studies touching on most . . . of the more important subject matter, doctrinal, interpretive, and history-impacting developments in American constitutional law over the course of 200-plus years.

Rick Garnett has endorsed this proposal.

I don't. Mike's proposal makes no sense for the vast majority of law students.


One law school course that comes close to satisfying the Langdellian ideal of teaching rigorous legal analysis through the evaluation of a body of appellate case law is constitutional law. Quibble though we might, the traditional march from Marbury v. Madison and McCulloch v. Maryland through congressional powers, the power of the states to regulate the national economy, separation of powers, the fourteenth amendment, and (perhaps) the first amendment is a reasonably effective and valuable exercise. Students learn something about the Supreme Court and the basic rhetorical structure of constitutional decisionmaking in the United States. They are introduced to a prominent interpretive tradition that bridges the worlds of common law and statutory interpretation.

Other constitutional law doctrines emerge, in various degrees of importance, in other law school courses. Administrative law, criminal procedure, property, and even environmental law devote considerable time to constitutional doctrines. In real life, all of these doctrines appear. They matter. To wit:

1. Entire areas of legal practice -- family law and education law come to mind -- operate under the shadow of doctrines taught in the traditional constitutional law course.


2. The single deepest body of cases in the traditional sequence involves a host of related doctrines restricting the ability of states and local governments to regulate (or tax) the national economy: the dormant commerce clause, the privileges and immunities clause of article IV, the equal protection clause (as applied to state laws purporting to regulate basic matters of health and welfare), and preemption. The commercial speech doctrine adds a neat wrinkle whenever government undertakes to regulate labeling, marketing, or advertising. Mike hates teaching these cases; in my teaching days, I loved covering this material. I take refuge in this tiebreaker: This is the likeliest point of engagement between business lawyers and constitutional law.


3. Learning about constitutional interpretation provides a useful point of comparison for lawyers whose day-to-day work involves so-called common law statutes. Knowing how to read the fourteenth amendment opens the door toward understanding, say, the Sherman Act or 42 U.S.C. § 1983. Again, those are statutes of which entire careers are made.

There is a common thread here: How does the content of law school instruction, within a single course or across an entire 90-credit curriculum, advance the careers of law students beyond graduation? For the vast majority of students, the conventional constitutional law sequence makes more sense than Mike Paulsen's "modest proposal." Remember: roughly 180 out of 195 ABA-accredited law schools have more in common with each other than with the 15 schools that Brian Leiter has tagged as "national" and therefore "elite." All three schools where Mike and I have worked -- Minnesota, St. Thomas of Minneapolis, and Louisville -- are "nonelite" by this definition.

Whether law professors, as a matter of personal intellectual satisfaction, would rather teach the Paulsen-Garnett curriculum is utterly beside the point. Indeed, it is a dangerous indulgence. A course called "Great Books and Great Cases on the Constitution" would make a fine "perspectives" course here at Louisville Law. "Perspectives" courses are electives, but we insist that you take at least one before you graduate. And at Mike's alma mater, where one in twelve living alumni is a law professor, perhaps a Great Books/Great Cases approach to constitutional law works just fine. At the least, it works for one-twelfth of the student population. But at a school where the total number of living alumni in law teaching might not reach 12, I'll stick with Constitutional Law Classic. It works, because what most of our graduates do is work.