Archive for the 'Law schools' Category

How a Conspiracy Cracked a Monopoly

Posted by on Dec 01 2013 | Constitutional Law, Constitutional Theory, federalism, Health Care, health control law, Individual Mandate, Internet, Law schools, Legal professor, Natelson Rob', obamacare, Popular Constitutionalism, Rob Natelson, Spending Clause, supreme court, Taxing and Spending Clause, Tenth Amendment, U.S. Constitution

Anyone interested in the constitutional debate over the “Affordable Care Act” should pick up a copy of the new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case.

This “conspiracy” was not a political plot or an illegal combination. Rather, it is one of the nation’s two top constitutional law websites—a blog called the Volokh Conspiracy, founded by UCLA law professor Gene Volokh.

The book is about more than constitutional arguments over Obamacare. It is also about the cracking of a monopoly (or more precisely an oligopoly): the grip on constitutional discourse by a relatively small, and overwhelmingly liberal, cohort of professors who teach at certain elite law schools. These schools include the University of Michigan, Columbia, the University of Chicago—and most notably Harvard and Yale.

Faculty at elite law schools tend to dominate constitutional discourse for a number of reasons. Their prestige attracts a disproportionate amount of legal talent—bright students who later take influential positions as judges, advocates, and policymakers. (Disclosure: I was admitted to several of these institutions, but nevertheless elected to attend Cornell Law School, which is considered very good but not in the “top ten.”) The mainstream media seeks out these professors, largely to the exclusion of other legal experts.

The elite professors also dominate, indirectly, the highly influential law journals published by their own law schools. These journals are edited by law students, who lack the knowledge necessary to measure the quality of a submitted article. Hence, in deciding whether to publish a submission they often rely on the attitudes of their own faculty and/or where the article’s author teaches or attended law school. My own publication career offers two (negative) illustrations of the monopoly’s methods: (1) As a student I resigned from from my own law review in disgust because the editorial board, in imitation of the elite journals, was running the review with a leftist agenda, and (2) as a law professor, I saw all my earlier constitutional articles—including those that ultimately proved most influential—uniformly rejected by the Harvard-Yale axis.

When the Obamacare law was first challenged in court, the Harvard-Yale axis pronounced it “obviously” constitutional. The six authors of this book dared to disagree, and most of the book consists of their postings. In addition to the Independence Institute’s own Dave Kopel, the authors include five full-time law professors, none of whom work at Harvard or Yale. They are Randy Barnett of Georgetown, Jonathan Adler of Case Western, David Bernstein and Ilya Somin of George Mason, and Orin Kerr of George Washington University. All lean libertarian except Kerr; his dissents add spice to the discussion.

Of course, these authors ultimately were vindicated. The Supreme Court’s decision to uphold the individual insurance mandate as a “tax” was a 5-4 squeaker. The Court also held that the mandate was outside the Commerce Clause and the Necessary and Proper Clause, and that the Obamacare Medicaid expansion was partly unconstitutional. As you make your way through the book, you can see how the winning arguments evolved. My favorite was the realization that the Supreme Court’s “substantial effects” test is a (mis-) application not of the Commerce Clause but of the Necessary and Proper Clause.

At the end of the volume is a section called “Postscript and Concluding Thoughts.” It encompasses six original essays in which the authors discuss the Obamacare case and its outcome. Probably the longest of these is Dave Kopel’s. I personally found it most interesting because it provides historical context and tells the story of the Independence Institute’s participation in the case.

A Conspiracy Against Obamacare is published by Palgrave MacMillan and edited by the Cato Institute’s Trever Burrus. Paul Clement, the former U.S. Solicitor General who argued the case against Obamacare in the Supreme Court, has written an engaging Foreward.

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All Kopel, All the Time

Posted by on Feb 13 2013 | Constitutional History, Constitutional Law, Kopelization, Law schools, Second Amendment, U.S. Constitution

I’m sure like me, you feel like there is just not enough Dave Kopel in the world to satiate your unquenchable thirst for the Second Amendment, law, history, and everything else Dave knows everything about. We’ll never get enough Kopel, but we can get close. I’ve been visiting Dave’s YouTube channel over the past few weeks and it’s a great way to keep up with everything he’s doing on air. It’s updated regularly so make sure you subscribe to it.

Below you’ll find the latest Dave video – a debate on international gun control held yesterday at DU. It’s basically an hour of Dave dropping knowledge on the panel and the room. Truly remarkable.

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“Beer + Pizza = Success.” The key formula for law students.

Posted by on Aug 19 2012 | Law schools

Beer plus pizza equals success

During Constitutional Law I at Denver University last Spring, I diagrammed for the students one of the most important study tips for law students: “Beer + Pizza = Success”.

No matter how relentlessly a student raises his hand during class, the maximum amount of speaking practice that can come from classroom participation is a few hours over the course of the entire school year. If you go out for beer and pizza with your fellow students, you can have vastly more hours of sharpening your argumentation skills, practicing how to speak persuasively and concisely, finding the strengths and weaknesses in different arguments, and so on. Your beer and pizza time doesn’t have to be devoted to rehashing the cases you’re studying. Whether you and your friends are talking about politics, sports, or whatever else interests you, you will probably learn a lot from your fellow students, and you will definitely strengthen some of the essential skills for becoming a successful attorney.

At the University of Michigan during the 1980s, pizza and Stroh’s beer at The Brown Jug were our key tools for self-directed learning. I have heard that these days some students instead use wine and salad.  That may work fine for some people, although I have never seen this tested in the law school context; Michigan in the early 1980s, with Professors such as Francis Allen, Whitmore Gray, Bev Pooley, and Theodore St. Antoine, favored the traditional and rigorous version of the 1L curriculum.

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Recommendations for First Amendment textbook

Posted by on Feb 05 2012 | First Amendment, Law schools

Next spring semester, I will be teaching a First Amendment class. So I request advice from commenters about what textbooks they liked, or did not like, and why.

For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.

Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett’s textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to “the Constitution outside the courts,” and not just to Supreme Court cases.

Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment’s interplay with the Copyright clause,  the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.).

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Bleg: Recommended US history book for Con Law I?

Posted by on Nov 17 2011 | Constitutional Law, History, Law schools

Next semester I will teaching the Constitutional Law I class at Denver University. It’s the standard class that almost all 2d or 3d semester law students must take at all law schools:

This required introductory course examines the role of the United States Supreme Court and, in particular, the Court’s power in exercising judicial review in cases interpreting the U.S. Constitution. The course focuses primarily on two topics. First is the doctrine of Separation of Powers: examining the structure and interrelationship of the three branches of the federal government, Congress, the Executive Branch, and the federal judiciary. Second is the doctrine of Federalism: the relationship and power distribution between the federal government and state governments. In addition, all sections will devote part of the course to an introduction to at least one aspect of the large field of individual constitutional rights. The specific rights covered will vary by instructor. . . .  Students who wish to gain a deeper understanding of these topics are strongly encouraged to take Constitutional Law (Advanced): Individual Rights.

My particular class will pay special attention to some topics of great modern relevance: the interstate commerce power and the N&P clause, since the Supreme Court will be hearing the most important case in decades on those topics. We will also get into some depth on the President’s war powers under Article II, since those were the subject of much debate under Bush, and remain so under the current administration–including the war with Libya.

I’ll be using Randy Barnett’s textbook, which is mostly chronological. One of the main purposes of the class is for students to learn how to practice constitutional law using originalism AND using living constitutionalism. The latter necessitates a chronological approach, since to counsel clients on how the Constitution might change in the future (or might change now), one must understand how the application of the Constitution has varied during different periods in American history.

In the class, I will explain some key facts in American history, for the benefit of students who may not have much history background. Some students, though, might want to do some additional reading to deepen their knowledge. So what American history survey book would commenters recommend for such students? I’d strongly prefer that the book be available in paperback, and not tremendously long, since first-year students have plenty of reading to do already.

FOLLOW-UP: Things are worse than I had feared. Several commenters mentioned some great books (e.g., Gordon Wood), but I want a survey that goes from no later than 1776 through most of American history. No textbooks for AP or college US History, although I wish my students had the time and the money for the Schlesinger textbook. No books that focus on a particular issue, even if it’s a broad one (e.g., Eric Foner’s book). I’m certainly not going to inflict Howard Zinn on my students. I read the 1st edition of People’s History almost as soon as it came out, and enjoyed it. But that’s definitely not the starting point for someone to learn the actual history of the United States; it’s a book for someone who already knows a lot of American history, and can discern the difference between some neglected stories that Zinn tells, and the incredible amount of chaff. Bill Bennett did so much damage to the Constitution during the Bush administration that I recoil from using his book in a constitutional law class. So in the realm of affordable survey paperbacks, we’re down to Brogan’s Penguin History and Paul Johnson’s A History of the American People. Based on Amazon reviews, each book is way too didactic for my purposes. Not that the distinguished authors are not entitled to their points of view; I just want something without such a heavy hand. At this point, I’m leaning towards telling students to buy Samuel Eliot Morrison’s Oxford History, which ends in 1963, but is available used for almost nothing, plus shipping. Or his more recent Concise History of the American Republic, also available used for very good prices.

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Biased Founding Era Scholarship

Posted by on Nov 23 2010 | Constitutional History, Constitutional Law,, Law schools, PPC, The Founders, U.S. Constitution

If you’ve ever tried to find high quality research that supports an “originalist” perspective of our U.S. Constitution and founding, you already know how difficult it can be. It seems that the majority of the scholarship – especially at the university level – is critical and sometimes outright hostile to an original understanding of our founding documents. The question is why? Professor Rob Natelson, our resident constitutional scholar, explains why in this new podcast. And believe me, if anyone knows the difficulties in doing unbiased constitutional scholarship, it’s Rob Natelson. The man has published more high quality founding era research than most people could ever read in their lifetime. To begin your journey into Rob’s world, visit his blog at In particular, check out this post on his personal struggle working within the university system and trying to uncover never before seen insights into our founding era.

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The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school

Posted by on May 24 2010 | Academia, congress, Constitutional History, Counter-Terrorism Policy, Criminal Law, Economic LIberties, education, guns, History, Law schools, Legal professor, Militia, Rehabilitating Lochner, William Simkins

(David Kopel)

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida.

The Florida KKK organized in 1867–68. Simkins later described himself at the Klan leader in Taylor, Madison, and Jefferson counties. These three contiguous counties are part of the eastern panhandle, east of Tallahassee. As far as the record shows, Simkins never claimed that any Klan actions in those counties had been carried out contrary to his orders, or that he regretted anything the Klan did in those counties. Accordingly, it is plausible to hold Simkins personally responsible Klan activity there.

Federal troops were withdrawn from Florida in July 4, 1868. From July 8 through 14, five blacks were murdered by “white regulators.” In mid-July through October 1868, the Madison County KKK murdered seven more blacks, including Randall Coleman, a leading Republican.

In Taylor County, “masked night riders paraded with KKK flags and threatened farmers who refused to join the Klan.”

Florida’s Governor Reed had purchased two thousand muskets for the state militia. On the night of November 5, 1868, while the train carrying the muskets had stopped at the Greenville station in Madison County, Klan raiders removed all two thousand muskets–destroying some, and keeping the rest. Simkins later bragged that “Every telegraph operator, brakeman, engineer and conductor on the road was a Ku Klux.”

The Jefferson County Klan coerced white farmers into refusing to sell land to freedmen, or to taking the money, and then having the Klan drive the freedmen off his new freehold.

According to Newton, Madison County was the second-worst county in Florida for Klan violence, with 25 murders from 1868–71. The victims were always members of the Republican party.

On the night before the November 7, 1870, election, “armed riders invaded” the town of Madison, “harassing black voters.” On election day in Monticello, Jefferson County, “Georgia Klansmen joined the local mob and hundreds of shots were fired in a rioutous demonstration of white solidarity,” intended to frighten blacks against voting.

The election results left the state government weakly in reconstructionist hands. The store belonging to Madison County Sheriff Montgomery was burned on December 17.

Congress passed a new, stronger Enforcement Act in April 1871, and in November, a congressional subcommittee held four days of hearings in Tallahassee about Klan crimes. Even so, another Republican’s store was torched on November 6, 1871. However, President Grant’s October declaration of martial law in nine South Carolina counties had a chilling effect on the Klan, and by 1873, Florida Klan supporters were denying that there have had been a Klan in Florida, or were claiming that if there had been one, it was no longer active.

Simkins himself happened to leave Florida for Texas in either 1871 or 1873. (Sources conflict.) He particpated in two 1894 U.S. Supreme Court cases, Reagan v. Farmers’ Loan & Trust Co. and Reagan v. Mercantile Trust Co. He supported the Texas Attorney General’s argument that the judiciary had no power to review the reasonableness of railroad rates which had been established by the Texas Railroad Commission. The Supreme Court, in an unanimous opinion by Justice Brewer, disagreed.

That Simkins was an advocate of the unreviewable power of unreasonable government economic regulation should be no surprise. As David Bernstein explains in his book Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal, the caste system of Jim Crow was founded on government power to prevent black and white people from freely choosing to engage in economic relations.

Last Friday, the University of Texas announced the formation of a special working group which will issue a report on the Simkins naming controversy by the end of June.

Simkins should have been denied admission to the Florida bar in 1870, based on his admitted role in the theft of firearms from the militia of the state of Florida, and his role in organizing and leading a terrorist organization which appears responsible for numerous homicides and many other violent felonies. In 1870, the Florida Supreme Court did not know of the evidence regarding Simkins’ terrorist crime spree in 1868–70,  but the 2010 working group will have more information.

Of course the fact that a person is an unrepentant, retired, terrorist is not necessarily a bar to being a professor at a prestigious law school–not for William Stewart Simkins at Texas in the early 20th century, or for Bernardine Rae Dohrn at Northwestern in the early 21st century.

Readers who are interested in more on the Simkins controversy may enjoy the blogging thereon at The Faculty Lounge, which has been covering the story since Russell released his paper.

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