Recently, local-government-law maven Kathleen Morris made the case that to enhance civic engagement in our era of great city innovation and ferment, as well as to bolster American democracy from the bottom up, law schools should require—or at the very least offer—courses in state constitutional law and state and local government law. To which I not surprisingly say amen! But in honor of the launch of SLoG, (which we all hope will be anything but), I want to float a not-so-modest proposal that goes one step further: let’s replace the standard federal constitutional law course that occupies pride of place in the first-year curriculum with (a constitutionally focused version of) state and local government law.
To those of you, dear readers, instinctively flinching about all the foundational and critically important concepts such as separation of powers and federalism that we teach through the lens of federal constitutional law—not to mention the entire panoply of individual rights—I have this to say: your students will learn all of that but will do so in a more interesting and complex context, one that, most importantly, is actually connected to the daily practice of the overwhelming majority of lawyers.
Think about the standard first-year curriculum, not just the core private-law subjects of torts, contracts, and property, but also criminal law and the criminal-justice system as it is experienced by most people, as well as civil procedure, if it were generally taught in ways that reflect where most litigation actually happens. (Sure, there are more than a million federal cases filed every year, although the overwhelming majority of those are bankruptcy cases. But state and local courts adjudicate more than 80 million cases every year.) All of that is first and foremost the realm of state and local governments.
And don’t get me started on how this new take on con law would relate to courses on legislation and regulation, which are appropriately increasingly central to the first-year curriculum. In the areas typically covered by such courses, understanding the rich and varied texture of how legislation works and agencies do their administering at the state and local level offers insights that our students are missing when all they understand is the federal regulatory system. Want to understand the future of agency deference when the Supreme Court eliminates Chevron? No problem! That’s been the doctrine in many states for years. Starting with state and local constitutional law and structure could make those connections much clearer.
It fundamentally confuses our students, and I have seen this over the years, especially when I teach first-year property, to introduce them to a default framework for understanding the constitutional dimensions of our legal system that is disconnected from the levels of government that actually govern most of the primary law-related functions in our society, the institutions that create and manage those functions, and the rest of what we teach them (or should) in the first year.
I spend a good chunk of the early part of my state and local government law class every year deprogramming my students from the idea that there is only one model of constitutional governance—that every executive is unitary, every legislature bicameral, every Supreme Court limited to cherry-picking a handful of cases that number in the paltry double digits every year. It’s an exercise they seem to embrace, but what would it mean if every law student began to form their constitutional instincts around the legal institutions of governance that, well, actually govern most issues?
This is not to agree with Bruce Katz that the federal government has essentially become a health care company with an army—as a proud former federal official myself, I know how much vital policymaking happens at the national level, at least in those rare moments when Washington can be roused to overcome its deep-seated dysfunction. But we seriously risk obscuring the complex world of constitutional governance in all of its breadth in our legal system when all we teach is Articles I, II, and III. (Fine, there could be a class session or two in my future first-year con law course that examines the federal structure for comparative purposes, but for students really planning to spend their careers at the Office of Legal Counsel, law schools could easily offer upper-level specialized federal con law classes. No problem.)
Ah, you say, but what about all of those iconic individual rights cases that push and puzzle and inspire and enrage our first-year students? Pick almost any of them and remind me—who was on the other side of the “v.”? Let’s see. Roe v. Wade? Henry Wade was the district attorney of Dallas County, Texas. Goldberg v. Kelly? New York City and New York State. Brown? Well, yes, that would be the Topeka Board of Education. I could go on, but you get the idea and our con law colleagues could largely cut and paste this part of their syllabi in our hypothetical new regime. (And that’s even before we get to Judge Sutton’s observations about the interplay between federal and state courts on rights jurisprudence—about which much more will be said in SLoG shortly—let alone the larger question of new judicial federalism, all of which would have a much more comfortable role in my future first-year constitutional law class.)
I can see why this all might simply look like rent seeking. In truth, I’m perfectly happy to teach my state and local government law class to 25 or 30 students—lots of room for small-group exercises!—and not worry about other colleagues poaching a class I love. But this isn’t about finding more students. This is really about how we understand the purpose of what we teach in law school and how it reflects the challenges our students, by and large, will encounter in their practice. Again, I’m not saying that federal constitutional law is not important, and is certainly well worth an upper-level seminar or elective course. But every single structural and rights-related concept that we teach in the current constitutional law course can be taught in a better, more comprehensive, more relevant way through a focus on state and local government law.
This is just a thought experiment and I know not terribly likely to gain traction—perhaps the best we can hope (and even this would be very significant) is to heed Kathleen’s call for more state and local government law in general. But if there’s one message SLoG is not so subtly trying to send, it is how vital and interesting and overlooked state and local government law actually is. So, what do we have to lose?