Posted on 12/23/2019 6:06:19 AM PST by Kaslin
The expert panel on impeachment in the House Judiciary Committee consisted of four law professors—not one of whom was a conservative or a Trump supporter.
Unfortunately, the panel reflects the faculty imbalance in our law schools. Because of this imbalance (and a lot of sloppy faculty scholarship), law students often are subtly indoctrinated in a leftist vision of the law without anyone realizing it is happening.
For example, when I began teaching constitutional law, I surveyed the available constitutional law course books. What I found was a waste dump of pedagogical malpractice—but one that reflects how most constitutional law courses are taught.
For example, most of the books treated constitutional law as essentially beginning in 1803 when the Supreme Court decided Marbury v. Madison. They paid little attention to the 600-year Anglo-American foundation that supports the Constitution and contributes much of its meaning.
In Marbury v. Madison, Chief Justice John Marshall announced that the Court would not apply an unconstitutional statute. Because of how constitutional law is treated, students sometimes get the idea Marshall made this up—an activist judge’s power grab. In fact, the idea that courts should strike down unconstitutional statutes was discussed at length during the colonial era. It was discussed and welcomed during the debates over the Constitution’s ratification.
This is only one example of how Marshall is misrepresented in many constitutional law courses—as a sort of a modern-style “big government,” activist justice (that’s supposed to be a good thing.) In fact, he wasn’t.
On average constitutional law texts devote two thirds of their coverage to less than two percent of the Constitution. The favored portions are (1) the First Amendment and (2) two sections of the Fourteen Amendment. Why these portions? Because, I think, they are provisions in which liberals are obsessively interested: They include lots of cases about race, gender, abortion, and porn.
Imbalance occurs in other courses as well. For example, a common narrative is that during the 19th Century—the evil age of wicked laissez faire capitalism—the courts were very anti-consumer. If a product or a house was defective and the consumer learned about it after purchase, then supposedly the judges just said “tough luck.” More precisely, they said it in Latin: caveat emptor—“Let the buyer beware.”
Supposedly they stuck it to the consumer because they were free market ideologues and/or in the pockets of big business. They favored business by shafting the public.
After I became a law professor I investigated this story and learned it was a crock.
Actually, caveat emptor was only part of a larger saying: Caveat emptor qui ignorare non debuit quod jus alienum emit. Loosely translated, it means “Don’t buy stolen goods.” More precisely, it means that if you purchase something when you should know the seller really doesn’t have clear title, then you can’t cut off the real owner.
The original caveat emptor rule had nothing to do with physical defects at all.
When I started reading 19th Century cases involving defective products, I learned the courts actually treated the parties very fairly. If the seller was guilty of fraud or misrepresentation, the seller lost and had to pay the buyer. If the defect was hidden, the buyer also generally won. In that case the courts said the seller had given the buyer an “implied warranty of merchantability”—an unspoken guarantee of quality. If the defect was not exactly hidden but someone in the buyer’s position wouldn’t have noticed the defect, then the buyer still won. Another implied warranty of merchantability.
The buyer lost if the defect was obvious at the time of sale or the buyer didn’t examine carefully what he was buying when he bought it. In that case, a judge might utter, “Caveat emptor.”
But a whole generation of law students has been trained to think that the 19th Century courts were heartless tools of malicious capitalists, and that enlightened reform came only with the virtuous 20th Century “progressives.”
Does this kind of indoctrination have real world consequences? You bet it does. Law school is the only time when most attorneys undertake full-time education. Many carry their law school experiences with them throughout their professional careers. Law school affects how they serve clients and argue to judges and juries. It probably affects how they vote. If they become judges, it may affect how they decide cases.
Fortunately, some lawyers overcome the damage, but many never do.
So if you want to reform in our overly-activist judicial system, insist on more balance and better scholarship in our law schools.
No wonder nobody knows what “natural born citizen” means.
I am a Naturalized citizen. So I know what it means.
Or “shall not be infringed.”
Another example where Democrats are Democrats 1st and foremost always. Professional integrity, intellectually honest, basic morality be damn if the party commands it.
The parallel between the modern Democrat Party and the Authoritarian movement of the Stalinist, the Facist and Nazism are very very strong
Great article! But the link is broken
" Unfortunately, the panel reflects the faculty imbalance in our law schools. Because of this imbalance (and a lot of sloppy faculty scholarship), law students often are subtly indoctrinated in a leftist vision of the law without anyone realizing it is happening. "
and insert any subject to describe how America got here.
I have been a staunch advocate of shutting down the public school system BECAUSE of indoctrination.
Great article! But the link is broken
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Hopefully, this will work:
https://townhall.com/columnists/robnatelson/2019/12/23/lies-law-professors-tell-n2558414
So, one thing that we can hope for....is that Trump stacking the courts of appeals with younger conservatives, is that their clerks (some of whom will become law school faculty) and their opinions (some of which will be law school class material) will slowly turn this around.....it will take time, but winning bigly in the judiciary is good for America. Hopefully in many ways.....
The words: “lie”, “law” and “professor” all in the same title.
So what else is new?
Putting this Feldman character on the gallows next to Pelosi would be a good education for lawyers present and future.
The origins of public education were to turn out good, productive, responsible citizens. That included understanding our public institutions - how/why they came into existence, the rule of law, need to sustain them for future generations, etc etc. The left would claim this is exactly what they are doing, only making corrections for the sins of the past... except they have successfully used the judiciary (thanks to FDR) to implement, not through amendment.
The author’s view is close to my experience with ConLaw over 2 decades ago. He could have mentioned that some of the other aspects of ConLaw are taught in detail in other courses (e.g. Criminal Procedure does deep dive on Amendments IV, VI, VIII), Tax Law covers the 16th Amendment. Also, ConLaw is taught to mirror many of the questions on the bar exam. Hence, there is “no time” to study Articles I,II, III, Amendments X, XVII.
“The words: “lie”, “law” and “professor” all in the same title.
So what else is new?”
LOL. While my experience in law school mirrors what the author stated generally, I had some very good, honorable, fair minded law profs on both sides of the ideological aisle. That was almost 30 years ago - perhaps it is worse today.
p
Good find, now bookmarked. Thank you.
Ping.
Thanks RACPE.
Not just the “line-up” of law professors, but the entire gang of “witnesses” processed by the kangaroo court run by Schiff, Nadler, and Pelosi, reminded me of a scene from a movie, “Running Scared” starring Gregory Hines and Bill Crystal. It’s a cop movie, and these 2 copy put their confidential informant (snitch) in a police line-up. The key is “Police.” They put him in with 4 uniformed cops in the line up.
Watching this circus side-show gave me a serious case of deja-vu from the movie. It’s not like the “investigation” was rigged or anything...
https://www.youtube.com/watch?v=aJhtBJETQF8
Mark
bump
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