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 constitutio