"How the Hell To Teach Constitutional Law in 2025: Twenty Questions and No Answers."

Written by Eric Segall, at Dorf on Law.

I don't teach anymore, so I don't need to answer question like this, but I'd actually love the opportunity to work this out, and I'll bet there are a lot of younger law school graduates who have the energy and dedication and brains to figure out how to teach conlaw these days. Maybe those of you who are worn out should consider retiring. Oddly enough, when I decided to retire, it was the fall of 2016, and I was sure that Hillary Clinton was about win the election and that after she appoints the successor to Justice Scalia, with 5 strong liberals on the Supreme Court, constitutional law was going to become very boring.

Much of the bulk of Segall's 20 questions is a longstanding problem in conlaw: There's too much material to cover everything or even to cover anything with enough depth. But the argument that we've got a special problem right now is summed up in the first 2 questions:

"The long con of the left is corruption of the judiciary.... It has been brewing in legal academia for 20 to 30 years."

Says Elon Musk.

The left-wing ideology says the right-wing ideology is an even longer con.

Everyone's ideology says the other side's ideology is a con.

Overheard on the street during the Wisconsin protests of 2011: "All the assholes are over on the other side."

Professor vividly demonstrates the problem with the duty to retreat.

 TikTok, after the jump:

Hillary Clinton can't talk straight about whether Kamala Harris has sought out her advice on how to debate Donald Trump.

I'm reading "Hillary Clinton Has Advice on Debating Trump: ‘He Can Be Rattled’/The 2016 Democratic nominee fell short to Donald Trump, but she had strong debate moments against him. In an interview, she offered some thoughts for Kamala Harris" (NYT).

"The consensus was that I won all three debates and that I was well prepared," Mrs. Clinton said.

That rather suggests that she doesn't have the secret to besting Trump in a debate. Everyone around her told her she was winning, so she knows what it means to win. Obviously not.

And this was funny:

Have you talked with Harris about this debate?

He doesn’t answer the questions. He doesn’t come with any specifics. It appears from the reporting that he is going with a scorched-earth approach and will just try to tear her down, which is his usual go-to strategy.

She didn't answer the question when she answered a question by saying "He doesn’t answer the questions." The question was "Have you talked with Harris about this debate?" I'm going to infer that the answer is no. I can also infer that one piece of advice she would give KH if she were asked is: Any question you don't want to have to answer can be reimagined as a question you do feel comfortable answering.

A new front in the battle against affirmative action?

I'm reading "Lawsuit: Northwestern’s law school is biased against White men in hiring/The complaint alleges that the private university’s law school gives hiring preference to 'mediocre' women and applicants of color" (WaPo).

A lawsuit filed Tuesday against Northwestern University opened a new front in the battle against affirmative action....

“For decades, left-wing faculty and administrators have been thumbing their noses at federal anti-discrimination statutes,” contends the suit, which was filed Tuesday in federal district court in Illinois. “They do this by hiring women and racial minorities with mediocre and undistinguished records over white men who have better credentials, better scholarship, and better teaching ability.”...

The suit names three White men it says were not hired despite strong qualifications, and names four Black women and one Black man who it alleges were offered faculty positions because of their race and/or gender, painting several of these academics in harshly unflattering terms.

This sounds not new but old to me, because I remember when the University of Wisconsin Law School was sued in exactly this way. The case went to trial, and I testified, because I'd served on the Appointments Committee. This was many years ago, and the jury found in our favor. It's very difficult to look at particular individuals who were hired and compare them to individuals who were not hired. This was decades ago, and the relevant case law has evolved since then.

Eugene Volokh is not one of the plaintiffs in the new lawsuit, but the complaint contains allegations about him.

"The University of Wisconsin-Madison is at the center of another controversy this week over its diversity training program...."

"The controversy could not come at a worse time for the university, which recently agreed (after considerable debate and pushback) to cut down on its diversity-related materials in exchange for $800 million in funding from the state. The board originally refused the money rather than cut back on the training before finally yielding to the pressure. The immediate responsibility for the training material falls on the shoulders of [law school dean Daniel Tokaji] whose staff approved this mandatory training and presumably reviewed the material in advance. If they did not, they are equally at fault...."

Writes Jonathan Turley, in "Wisconsin-Madison Under Fire Over Mandatory Anti-Racism Training."

I've written about this controversy a couple times already — here and here — but I'm blogging it again for 2 reasons:

"It's totalitarian indoctrination, of course, and it's meant to be."

Writes Glenn Reynolds, about the mandatory DEI training for first-year law students at University of Wisconsin Law School (where I was a lawprof from 1984 to 2017).

Reynolds observes: "This sort of thing also creates a pervasively hostile educational environment on account of race, as courts are starting to notice."

He links to TaxProf Blog, which copies the text of Alan Rozenshtein at Volokh Conspiracy: "Mandatory DEI Trainings and Academic Freedom":

"You distance yourself from 'other' white people. You see only unapologetic bigots, card-carrying white supremacists and white people outside your own circle as 'real racists.'"

"You put other white people down, trash their work or behavior, or otherwise dismiss them. You righteously consider yourselves white people who have evolved beyond our racist conditioning. This is another level of denial. There are no 'exceptional white people.' You may have attended many anti-racism workshops; you may not be shouting racist epithets or actively discriminating against people of color, but you still experience privilege based on your white skin color. You benefit from this system of oppression and advantage no matter what your intentions are. This distancing serves only to divide you from potential allies and limit your own learning."

That's the "reality check" on item #21 of a DEI handout called "Common Racist Attitudes and Behaviors That Indicate a Detour or Wrong Turn into White Guilt, Denial or Defensiveness."

In the realm of law school rankings and affirmative action: "There is no subterfuge here."

I'm reading "Law schools love to hate U.S. News rankings. But some can’t let go. Yale law’s decision to stop cooperating with the publication landed like a thunderclap. Records show what other schools thought about the 'revolution.'"

Let me drag this key passage out of the middle:

As schools weighed their decisions, some questioned the purity of the boycotters’ motives. One theory: Some schools, correctly anticipating that the Supreme Court would soon strike down race-based affirmative action, could be planning admissions changes that would hurt them in the rankings but preserve diversity. The Wall Street Journal Editorial Board surmised as much, saying, “The Yale and Harvard announcements look like attempts to adapt in advance.”

When the University of Michigan’s law dean heard this theory from an alumnus, he dismissed it, saying in an email shortly after Yale’s announcement that his school’s decision to withdraw was “100% not connected to any Supreme Court ruling.”

“There is no subterfuge here,” wrote Mark West, dean at Michigan, which ranked 10th at the time.

"Are 10 minutes of shouting out of an hour-and-a-half-long event too much? That is a matter of judgment and degree."

Said Nadine Strossen, a former head of the American Civil Liberties Union, quoted in "At Stanford Law School, the Dean Takes a Stand for Free Speech. Will It Work? After a student protest, Jenny S. Martinez wrote a much-praised memo defending academic freedom. But that protest shows how complicated protecting free speech can be" (NYT).

If you get the balance wrong, Ms. Strossen said, then you risk chilling speech on the other side....

Ms. Strossen said she was struck that [a week later, when she appeared on a panel at Yale], there were no protesters of any kind. “I worry that maybe the reason that there weren’t even nondisruptive protests,” she said, “is students were too afraid that they would be subject to discipline or doxxing.” 

Strossen spoke at Stanford in January, a guest of the Federalist Society. That was 2 months before the famously disrupted visit by Judge Kyle Duncan. Strossen says that Tirien Steinbach, the associate dean for diversity, equity and inclusion — widely criticized for her handling of the Duncan event — moderated her event. According to Strossen, "That took some courage." It was "extraordinary."

Pause a moment to absorb that.

"Only now — as a student about to graduate — do I realize how few classmates agree with the loudest ones."

"Most of us fall somewhere between or are still forming our opinions. A friend recently told me that 'coming out as a moderate was more difficult than coming out as gay at Stanford Law School.' He eventually moved to San Francisco so he could 'just ignore the madness.' These dynamics are hardly unique to Stanford. My friends in law school at Yale and Harvard, among others, have shared similar experiences...."

Writes Tess Winston, in "With some of my fellow Stanford Law students, there’s no room for argument" (WaPo).

The quietness of people in the middle makes extremism work. They're so busy being invisible that they don't notice — or acknowledge — the role they play.

How easily they internalize bullying:

Judge Duncan's Wall Street Journal column: "My Struggle Session at Stanford Law School."

Link.

Stanford Law School’s website touts its “collegial culture” in which “collaboration and the open exchange of ideas are essential to life and learning.” Then there’s the culture I experienced when I visited Stanford last week.... 

When I arrived, the walls were festooned with posters denouncing me for crimes against women, gays, blacks and “trans people.” Plastered everywhere were photos of the students who had invited me and fliers declaring “You should be ASHAMED,” with the last word in large red capital letters and a horror-movie font. This didn’t seem “collegial.” Walking to the building where I would deliver my talk, I could hear loud chanting a good 50 yards away, reminiscent of a tent revival in its intensity. Some 100 students were massed outside the classroom as I entered, faces painted every color of the rainbow, waving signs and banners, jeering and stamping and howling.  As I entered the classroom, one protester screamed: “We hope your daughters get raped!”

It was a big protest, generated by the real human beings the law school had assembled as its student body, not propaganda on the institution's website. It's real life, like the life experienced beyond the courthouse and beyond the law school, and it's not that polite. You know, it's also not polite to put "trans people" in quotation marks. It's a more polished form of incivility, but law students have long protested about the way law dresses up and glosses over injustice.

"[Judge Kyle] Duncan was treated like a politician, because that’s what he is..."

"... and politicians have long understood that, in the United States, shouting at them is our birthright.... The idea that a political speech deserves the quiet deference one brings to a golf course or a tennis match is an idea that runs counter to our American traditions. I’m old enough to remember the last State of the Union address, and I recall Majorie Taylor Greene spending the president’s entire speech braying like a howler monkey looking for a date. I see no reason for Stanford Law students to comport themselves better than Republican members of Congress."

 
Writes Elie Mystal in "Protesting an Anti-Trans Trump Judge Isn’t Disrespectful, It’s American/Judge Kyle Duncan lashed out at students who protested his appearance at Stanford Law School, but shouting at political figures is our most protected speech right" (The Nation). 

"I think the focus on the [Stanford DEI dean Tirien] Steinbach is a mistake, for reasons I articulated..."

"... in my post 'Firing Diversity Dean Over Judge Shout-Down May Help Stanford Law School Escape Consequences Of Its Toxic DEI Culture.' My point was that Steinbach was just doing what was expected of her as a DEI officer. She is the symptom, not the underlying problem, which is the DEI culture of intolerance.That toxic culture evidenced itself after the shout-down. The Stanford Law School Chapter of the Federalist Society, which invited Judge Duncan to speak, got almost no faculty support (only two reached out privately), even though not just Judge Duncan but also Federalist students were targeted. Through its silence, the faculty sent a strong message that what happened was acceptable (had it been a liberal judge shouted down, you can be sure there would have been a faculty uproar.)"

 
Writes William A. Jacobson in "The Stanford Law School Culture, Not The Diversity Dean, Is The Problem (but I repeat myself)/Something is wrong with the culture at Stanford Law School, and many (most) law schools. Let’s address that issue" (Legal Insurrection). 

It's so much easier to target one person. It's the old rules-for-radicals idea: "Pick the target, freeze it, personalize it, and polarize it." The law school dean, by apologizing for Steinbach, has helped isolate the target, as if the larger DEI Culture is not under attack. How weak is that culture? The students ought to suspect the entire thing is a con. Ironically, Critical Theory teaches us always to suspect that these efforts are a con.

Jacobson says it's a mistake for conservatives to begin with the attack on the isolated target. He recommends skipping that step. Here's how Saul Alinsky explained his "Pick the target" approach in "Rules for Radicals":

"You might read comments somewhere that I was, at some point, given 'permission' to deliver my remarks by the DEI Assistant Dean, Steinbach. Nonsense."

"For a good 20-30 minutes (I’m estimating), I was ruthlessly mocked and shouted down by a mob after every third word. And then Steinbach launched into her bizarre prepared speech where she simultaneously 'welcomed' me to campus and told me how horrible and hurtful I was to the community. Then she said I should be free to deliver my remarks. Try delivering a lecture under those circumstances. Basically, they wanted me to make a hostage video. No thanks. The whole thing was a staged public shaming, and after I realized that I refused to play along."

Said Judge Kyle Duncan, interviewed by Rod Dreher (at Substack).

So, the judge declined to deliver his speech after Steinbach quieted the crowd for him. He's also now calling for her to be fired. He says it was a "staged public shaming," but that's the same thing as saying that the protest was planned. He and his supporters are engaging in staged public shaming too, and they want a person not just disrupted on one evening but deprived of her job. That's tit for tat and a refusal to stand down.

Did the Stanford president and the Stanford law school dean apologize for what the DEI dean said to calm the students who were shouting down Judge Kyle Duncan?

That's what Ed Whelan asserts over at National Review. He says:

In an obvious reference to DEI dean Tirien Steinbach’s bizarre six-minute scolding of [Judge Kyle] Duncan, their letter observes that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”

As you know, I defended Tirien Steinbach.

U.S. News says the law schools withdrawing from its ranking system are in prep mode for the end of affirmative action.

I'm reading "Defending Its Rankings, U.S. News Takes Aim at Top Law Schools/The publication accuses Yale and other schools of trying to evade accountability — and sidestep a likely end to affirmative action — by opting out of its ratings" (NYT).

“Some law deans are already exploring ways to sidestep any restrictive ruling by reducing their emphasis on test scores and grades — criteria used in our rankings,” Eric J. Gertler, the executive chairman and chief executive of U.S. News, wrote in an opinion essay on Tuesday in The Wall Street Journal....

It's a little hard to figure out the causality. If law schools can't directly take race into account, why would they make an adjustment that puts less emphasis on test scores and grades?

"What is real to me is a painting to you. The artist was depicting history, but it’s not his history to depict."

Said Maia Young, a second-year student, quoted in "In Vermont, a School and Artist Fight Over Murals of Slavery/Created to depict the brutality of enslavement, the works are seen by some as offensive. The school wants them permanently covered. The artist says they are historically important" (NYT).

As for the lawsuit: "The case turns on language in the federal law that says artists can seek to prevent modification of their work if the change would harm their 'honor or reputation.' The law school says that covering the murals, even permanently, is not a modification if it leaves no mark."

The murals are, of course, anti-slavery, but they are intended to make viewers feel bad. Should the students have more control over when they need to think about disturbing things? It's one thing to teach about slavery, another to have a big slavery mural always on view. But it seemed like a good idea to the people in power at the law school in 1993.

A second-year student, Yanni DeCastro said, "If someone is saying to you, 'How you’re depicting me is racist,' for you to live in your own ignorance, and further aggravate the situation — now you’re showing us who you are."

"Live in your own ignorance" — it's what we all do, one way or another. 

"Wisconsin has long been unique in allowing graduates of its two law schools to become licensed to practice law without taking the bar exam..."

"... if they take a required set of courses. This 'diploma privilege' eliminates a significant barrier to entry–the bar exam–which disproportionately affects people from less advantaged backgrounds and historically underrepresented groups. UW Law graduates had a 100% bar admission rate in each of the last two years. Due to an obscure change in the methodology, however, our ranking in the bar admissions metric fell from No. 6 to No. 45 in 2022. We raised this issue with U.S News in November 2022, pointing out that this change unfairly hurts schools in states that provide greater access to the practice of law, but they have given no indication that they plan to fix the problem...."

From "UNIVERSITY OF WISCONSIN LAW SCHOOL WILL NOT PARTICIPATE IN U.S. NEWS SURVEY," a statement from the dean, Dan Tokaji (at the Law School website).

Do you think Wisconsin is "unfairly hurt" by a methodology that mutes the effect of this unique privilege that our legislature has bestowed on our graduates? 

Notice that there are 2 aspects of this argument against the U.S. News ranking. One is that we're not getting enough advantage from the diploma privilege. The other is that the privilege is especially beneficial to "people from less advantaged backgrounds and historically underrepresented groups," who, it is suggested, tend to have more of a problem passing the bar exam. The idea is that we have the privilege and it should boost our rank because it's helping the right students, the ones whom life has not otherwise privileged. 

Do law professors at other schools agree that Wisconsin should get a great advantage in the rank because of the diploma privilege? Would they like their state to institute a diploma privilege?

"U.S. News & World Report will continue to rank all fully accredited law schools, regardless of whether schools agree to submit their data...."

"A few law schools recently announced that they will no longer participate in the data collection process.... However, U.S. News has a responsibility to prospective students to provide comparative information that allows them to assess these institutions.... We will continue to pursue our journalistic mission...."

Says U.S. News, quoted at Taxprof.