Patterico's Pontifications

5/29/2010

Dean Kagan Eliminated Con Law (Updated x2)

Filed under: Education,Law — DRJ @ 10:16 pm

[Guest post by DRJ]

President Obama’s Supreme Court nominee Elena Kagan made several changes as Dean of Harvard Law School. Many commentators have focused on her ban on military recruiting but CNS news reports on another major change — eliminating U.S. Constitutional law as a required course:

“As dean, Kagan won approval from the faculty in 2006 to make major changes to the Harvard Law’s curriculum.

“My understanding is that she instituted three new courses to the required curriculum and, in so doing, got rid of a requirement to take constitutional law,” Robert Alt, senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, told CNSNews.com.

“Currently, at Harvard, constitutional law is not required for first-year law students, or even for graduation,” Alt added.

Indeed, according to Harvard documents, constitutional law is not listed among the law school’s academic requirements, though the catalogue for 2010-2011 does list more than a dozen elective courses dealing with some form of constitutional law.

But in a 2006 Harvard news release explaining the changes, Kagan explained the move away from constitutional law was deliberate: “From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.

“Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,” the guide said.”

American law students trained in the “global sphere … as context for U.S. law” instead of in U.S. Constitutional law? I don’t know what they call that in Boston. In Texas, we call that BS.

— DRJ

UPDATE: Media Matters points out an error in the CNS report because Harvard Law School had already dropped its Con Law requirement prior to Dean Kagan’s curriculum changes. As noted here, the prior curriculum encouraged students to take Con Law but it was not a required course.

UPDATE 2: My thanks to pizzathehut for his tenacity on this topic. The title of the post is in error since, unlike most of its top-tier brethren, Harvard Law did not require Con Law so the course wasn’t “eliminated” as a required course by Dean Kagan or her immediate predecessors. My apology for the error.

58 Responses to “Dean Kagan Eliminated Con Law (Updated x2)”

  1. What bothers me–aside from the removal of Con Law from the curriculum–is that her explanation is incomprehensible gibberish. Aren’t Harvard Law School Deans supposed to be able to communicate clearly?

    grs (c4740b)

  2. Harvard Law graduates are gay

    happyfeet (c8caab)

  3. I’d like to know what the attorneys here think of Beck’s assertion that law schools stopped teaching the constitution and instead teach precedent to promote the idea of a “living” constitution.

    Sounds like this would support Beck’s notion.

    Patricia (160852)

  4. But in a 2006 Harvard news release explaining the changes, Kagan explained the move away from constitutional law was deliberate: “From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.
    I’m with grs, what on earth doea this mean? I understand the individual words, just not the way they are put together. It is meaningless pablum. Do these people get paid by the word multiplied by an obfuscation factor?
    My head hurts…

    gazzer (8324ed)

  5. I think I understand; global means global. It should make for an interesting Senate hearing.

    Mike K (67e8ce)

  6. “Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,” the guide said.”

    Kagan’s statement sounds as if she sees the Constitution as irrelevant. Since when is the “global sphere” (international law? Napoleanic? Sharia?)the foundation for U.S. law – or is this a change that Kagan hopes to see occur?

    (I’m so confused by her statement quoted in #4, but I’m not a lawyer so perhaps I’m totally off base here, too. Got any decoder rings?)

    Dana (1e5ad4)

  7. It means that she, as does Mr. Justice Kennedy to some degree, believe that foreign attitudes and precedents have a greater influence over American jurisprudence than does the writings of a bunch of dead White guys from the 18th-Century.
    Her performance on this matter should be an automatic disqualification of her nomination.

    AD - RtR/OS! (36a650)

  8. I think we can file this news under “America has been warned” and “Just in case you mistakenly thought she’d be better than Sotomayor.”

    In the words of Opus the Penguin, “Pray for the Republic.”

    Alan (7130c5)

  9. Comments disappearing again.

    Mike K (67e8ce)

  10. Oh man is this what they’re going to bring up?

    pizzathehut (6ce957)

  11. This is indefensible idiocy. Were I a Harvard Law alum, I’d weep. As an American suffering under a hostile regime of Harvard/Yale Law elites, I do weep.

    Beldar (cb3731)

  12. I don’t know what they call that in Boston. In Texas, we call that BS.

    LOL, now, now DRJ. Although not a lawyer, it does seem odd to me that one would exclude US con law when one is most likely going to pratice law in the US.

    james (633fbc)

  13. “global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.”

    :groan:: You understand who this woman is yet?

    SarahW (af7312)

  14. Harvard’s Ivy-Inbred Law Students are Liberal’s Useful Idiots for evil, creepy things.

    syn (7a90b0)

  15. So, if Scalia has “originalism” to guide hims, what do we call this? “Globalism”? “Obfuscationism”?

    (I think that Souter was the founder of the latter.)

    Kevin Murphy (a5a4b2)

  16. This story from 2004 pretty much lays out what the debate is, while Kagan’s action pretty much shows which side of the line Justice Kagan would come down on. For Senators wary of voting against her confirmation on non-legal grounds based on her lack of written statements, pulling U.S. con law from the curriculum is definitely an opening into questioning how she sees the importance of it relative to international law as a member of the high court.

    John (d4490d)

  17. Harvard’s Ivy-Inbred Law Students are Liberal’s Useful Idiots serving evil, creepy things.

    syn (7a90b0)

  18. students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems

    In other words, she’s a moral-equivalency sort of multiculturalist, and places the laws of others at equal or higher importance than the US Constitution.

    Which, in a rational world, should immediately be fatal to her proposed seating on the US Supreme Court. Its job is to ensure that the US Constitution is held as the supreme law of the land, and not just some wafty alternative.

    Insufficiently Sensitive (8906ed)

  19. “Constitution? We ain’t got no Constitution. We don’t need no Constitution. I don’t have to show you any stinking Constitution.”

    Horatio (55069c)

  20. The most astounding clause in the CNS article to me is “…Kagan won approval from the faculty…” to delete the required course of constitutional law.

    I spent thirty-two weeks of my life thirty years ago in Law School reading and studying constitutional law. Every second of it was well worth the time because our constitution is the “glue” that holds all other areas of law together. Without an understanding of our most basic legal concept of government in this country, all of the “law” is merely a bunch of rules without any rational connection.

    To not require students to learn such significant and fundamental concepts generates an attorney lacking in ability to understand what it is that we do daily. And that is, to advocate, protect and defend the rights of our clients in the most fundamental of terms; most notably the right to be heard in court among many others.

    Without constitutional training, what is this graduate? To seek the deleation of this course, what is this faculty and what is this Dean? To promote international globalization of our law, what is this Supreme Court nominee? But moreover, what is this nominee who has not spent one hour in a black robe protecting any litigant’s constitutional rights?

    These questions are answerable. However, I don’t suppose most of us will admire the response.

    Mike H. (5db3b6)

  21. Comments continuing to disappear.

    Old Coot (f722a6)

  22. We call this BS in Colorado too.

    SPQR (26be8b)

  23. I blame Bush

    Mr. Pink (bb8267)

  24. Suggested question for Kagan: “Under what circumstances is the Constitution subordinate to those “global networks” of which you speak?

    Brother Bradley J. Fikes, C.O.R. (9eb641)

  25. This doesn’t even seem like a good idea in terms of promoting the ambitions of Harvard law students.

    Imagine this: An HLS graduate applies for a clerkship with a Federal judge.
    Judge: “I’m looking at your transcript, and I don’t see a grade for Constitutional Law.”
    Graduate: “That’s correct. It’s not a required course at Harvard Law School.”
    Judge: “But didn’t you want to take it as an elective anyway?”
    Graduate: “Actually, your honor, global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems are now considered better gateways into United States law.”
    Judge: “That’s interesting, but the Yale graduates I’ve been interviewing don’t seem to think so.”

    Joshua (eaf222)

  26. If Con Law is irrelevant in light of other “global networks”, then why not throw out the other classes too? If she’s chosen what would appear to be the backbone of American law school classes to toss, doesn’t everything else by default, become equally as unimportant and irrelevant?

    Dana (1e5ad4)

  27. Aren’t Harvard Law School Deans supposed to be able to communicate clearly?

    Perhaps that lack of clarity was intentional.

    Brother Bradley J. Fikes, C.O.R. (9eb641)

  28. There is a silver lining. If Harvard Law grads don’t know squat about the US Constitution, they won’t be able to pass the Bar Exam.

    Unless, of course Elena Kagan’s pernicious influence has already leveled the playing field there too.

    ropelight (ca1612)

  29. Perhaps the lack of clarity is globally international.

    I think it’s just “We’re in charge, history doesn’t matter.” (Royal “We”.)

    htom (412a17)

  30. Kagan merely is guilty of the moral relativism common on the left, in which the culture (and legal underpinning) of a country like the United States is deemed as no better than that of the culture (and laws) of any other country. It’s the same idiocy that makes some people claim Islamism (and Mohammed) is no different from Christianity (and Christ), and that if one major religion is bad and brutal than so is the other.

    But since so many brilliant voters throughout the United States back in November 2008 accepted the idea of placing “Goddamn America” into the White House, we end up with, well, a goddamned America.

    Mark (411533)

  31. My comment disappeared. It previously showed up on my screen at #24 following Bro Bradley, and was also appropriately listed in the “Recent Comments.” Now, it’s gone without a trace.

    Assuming this effort will be longer lived, my comment went something along these lines:

    There’s a silver lining to Kagan’s curriculum change at Harvard Law. If the school’s grads don’t know squat about the US Constitution, they won’t be able to pass the Bar Exam, and go on to screw-up the country even more.

    Assuming that Kagan’s pernicious influence hasn’t already leveled the Bar’s playing field as well.

    ropelight (ca1612)

  32. ropelight,

    I see your original comment at #27 (9:38 a.m.)…

    Dana (1e5ad4)

  33. ropelight — I see that comment at #27, with your note about it at #30. The numbers can slide about a bit as comments above appear from moderation or delay.

    htom (412a17)

  34. Isn’t it a little misleading to describe this situation:

    “Indeed, according to Harvard documents, constitutional law is not listed among the law school’s academic requirements, though the catalogue for 2010-2011 does list more than a dozen elective courses dealing with some form of constitutional law. ”

    as “eliminated con law” ?

    pizathehut (e66d8d)

  35. pizathehut (you lost a z),

    I don’t like long titles but the first sentence of the post makes it clear that Con Law has been eliminated as a required course.

    DRJ (d43dcd)

  36. pizathehut — I’m not a lawyer, but “Con Law” is well known as the basic Constitutional Law class that all lawyers struggle with. How you could teach other classes about Constitutional Law without having had the basic class seems to me to be like saying an engineering college had multiple classes about advanced physics topics, but had deleted freshman engineering physics.

    htom (412a17)

  37. “I don’t like long titles but the first sentence of the post makes it clear that Con Law has been eliminated as a required course.”

    Yeah I can see how unwieldy “Dean Kagan Eliminated Con Law Requirement” would be. Better to put that at the end of your first paragraph.

    “pizathehut — I’m not a lawyer, but “Con Law” is well known as the basic Constitutional Law class that all lawyers struggle with.”

    It looks like that is still taught. The course catalog lists several of that and first amendment law — the usual two semester introduction. In fact it seems like it is the most taught topic, tied with corporations if you just look at the basic structure con law course. This just adds to how silly it would be to think “dean kagan eliminated con law.”

    pizzathehut (fee10b)

  38. I don’t like long names, either. Don’t you have a shorter name to use?

    DRJ (d43dcd)

  39. On the other thread they were calling me PTH

    pizzathehut (2b5cca)

  40. And on the third had, The Won was a Con Law Professor, so that means that Consititutional Law was very important — or that he was a Professor of something unimportant, never mind, nothing to see there.

    Pizza – a glance at the Internet Anagram Server says that they must have liked you.

    htom (412a17)

  41. “And on the third had, The Won was a Con Law Professor, so that means that Consititutional Law was very important — or that he was a Professor of something unimportant, never mind, nothing to see there.”

    I believe his course was an elective, and only on equal protection.

    pizzathehut (ad9e3d)

  42. On the other thread they were calling me PTH

    only because it is shorter than “YAAFM”.

    HTH. HAND. etc….

    redc1c4 (fb8750)

  43. Mike K, you have to go into your Privacy settings and delete patterico.com cookies. I don’t know if that will work forever tho…

    Patricia (160852)

  44. What bothers me–aside from the removal of Con Law from the curriculum–is that her explanation is incomprehensible gibberish. Aren’t Harvard Law School Deans supposed to be able to communicate clearly?

    Emily (0c59eb)

  45. That’s enough for me. There’s no way she can unspin that schtuff, and a pretty good indication of the kind of thing she didn’t want to be confronted with in interviews outside of the White House’s communications office.

    She’s as unconfirmable as a hungry fox who wants to be preside over Henhouse Court. The only question is, does there exist a Republican with the cojones to block her?

    L.N. Smithee (e72ebd)

  46. Another America-hating lefty who feels that international law should trump constitutional law.

    Thumbs down.

    Icy Texan (f1c4ae)

  47. Sort of off-topic, this piece over at Volokh Conspiracy is amusing. It seems that the Solicitor General’s office just filed a brief that advocates granting cert to an appeal of an earlier Arizona law regarding illegal immigration and employer verification. An embarrassingly written brief that shows the confusion of the administration and Democrats on immigration policy.

    SPQR (26be8b)

  48. “Sort of off-topic, this piece over at Volokh Conspiracy is amusing.”

    Stewart Baker’s take on ‘the usual rules for certiorari’ is indeed heh-worthy.

    pizzathehut (4829b2)

  49. Translation: “The law is whatever I feel it should be and I can pick any law ever invented by anyone to justify myslef

    Is Harvard teaching Sharia yet?

    Can’t wait to get those , ummm, women under veils again.

    Da'Shiznit (f56a3c)

  50. Woah wait a minute. I just found out that HLS never had a requirement for con law. It was ‘strongly recommend[ed]’ as ‘prerequisite to much advanced work.’

    What Kagan instituted was a new required course on “Legislation and Regulation” which was meant to “naturally lead into, and enable students to get more out of, advanced courses in the 2L and 3L years, on legislation, administrative law, a wide range of regulatory subjects (e.g., environmental law, securities law, telecommunications law), and constitutional law.”

    So the claim that she “eliminated con law” is even more so misleading. If anything she promoted it!

    Aren’t you mad that you were lied to?

    pizzathehut (3bf1a8)

  51. Found that a Media Matters, pth? Harvard encouraged its students to take Con Law in 2001. Kagan helped Harvard change the focus to international law. I think that’s a mistake.

    DRJ (d43dcd)

  52. “Found that a Media Matters, pth?”

    With a link to the description of the course requirements, which do not include con law. So how about that? CNS new lied to you, parroting Robert Alt’s “understanding.” And all that you needed to be correct was to google. Instead you took their lie and made it even more dastardly.

    “Kagan helped Harvard change the focus to international law.”

    You do realize this is a school that trains people to go to elite parts of global capitalism, right?

    pizzathehut (bb8086)

  53. Did Kagan move Harvard away from Constitutional Law as the link states?

    Most law schools train students to be lawyers. What does training students to “go to elite parts of global capitalism” mean?

    DRJ (d43dcd)

  54. “Did Kagan move Harvard away from Constitutional Law as the link states?”

    I’ve provided evidence that she did not remove any constitutional law requirement. In fact, I provided evidence that she added a requirement whose goal was to promote, among other things, con law. Your link lied to you.

    It really is amusing that to get to your latest comment I go up to the top right and click on a link that says ‘DRJ on Dean Kagan Eliminated Con Law’

    “Most law schools train students to be lawyers. What does training students to “go to elite parts of global capitalism” mean?”

    It means HLS supplies people to elite institutions in global capitalism. Global law firms that deal with global commercial issues faced by transnational conglomerates.

    pizzathehut (c5488f)

  55. I’ve updated the post to add these points.

    DRJ (d43dcd)

  56. What evidence is there that HLS “had already dropped its Con Law requirement” as opposed to merely stating (with more brevity) that it simply had no con law requirement.

    pizzathehut (8bb588)

  57. I believe and will so inform my representatives in the Senate any person who does not hold the U.S. Constitution to be the supreme law of the land, superior to all foreign or groups of foreign law such be ineligible to hold an associate judgeship on the Supreme Court of the United States. If in there statements or if they quote foreign law as a reference in a opinion, they should be impeached and removed from that judicial posiiton.

    Zelsdorf Ragshaft III (105afd)

  58. I’m updating the post again because pizzathehut is right that the title is incorrect. I am amazed that Harvard Law did not list Con Law as a required course. Unlike Harvard, most of its top-tier brethren including Yale, Stanford, Columbia, Penn, Virginia, Michigan, Duke, Cornell, Northwestern, UC Berkeley’s Boalt Hall, UCLA, and Texas list Con Law as a required course.

    While I regret the error, errors like this can have interesting side effects. Doesn’t this mean constitutional law lecturer Barack Obama might not have taken Con Law when he attended Harvard Law? I would like to see his transcript to know for sure.

    DRJ (d43dcd)


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