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    July 26, 2023 HUMAN RIGHTS

    Teaching Law in this Difficult Time

    by Erwin Chemerinsky

    It always is difficult to assess our time during the present moment, but few would deny that this is a particularly fraught and troubling time in our nation’s history. The country is more deeply politically divided than at any time since Reconstruction. Faith in the institutions of government, including the U.S. Supreme Court, is at an all-time low. The problems—climate change, racial injustice, the unhoused in our cities—seem beyond the capacity of the government to solve. At the same time, the vitriol in public rhetoric continues to grow.

    All of this directly and indirectly affects us as law schools. The deep divisions in our society are reflected among our students, staff, and faculty. The Supreme Court’s decision to overrule Roe v. Wade and likely to end affirmative action in higher education has led to many of our students being more dejected about the Court and constitutional law than I have ever seen in my over four decades as a law professor. Of course, our conservative students are jubilant, but for our progressive and even moderate students, they see a Court that has situated itself solidly on the far right side of the political divide and is likely to remain that way for years or even decades to come.

    It is a mistake to think that law schools can or should act as if none of this is happening. Quite the contrary, we must recognize the reality of our times, look for how it necessarily affects legal education, and find ways for law schools to make a difference. 

    Law schools must play a conscious role in looking for solutions to the world’s seemingly intractable problems.

    Law schools must play a conscious role in looking for solutions to the world’s seemingly intractable problems.

    TULANE PUBLIC RELATIONS, CC BY 2.0 VIA WIKIMEDIA COMMONS

    I have spent a lot of time thinking about how to teach constitutional law courses at this moment. I taught criminal procedure in fall 2022 and constitutional law in spring 2023. Next year, I will teach First Amendment law in the fall and constitutional law again in the spring. I realize that I cannot simply teach the courses as I have been doing for over 40 years. It is a different time, and I must address it and the students’ concerns.

    First, I must explain to the students why it is important that they need to learn legal doctrines in order to practice law. No matter how much they might disagree with the Court’s rulings, if they are prosecutors or defense lawyers, they need to know things like the exceptions to the warrant requirements and what’s enough for reasonable suspicion for a stop and frisk. They need to understand the levels of scrutiny and how they are used, as well as doctrines about when federal law preempts state law.

    Students will need to advise their clients about this law. They will spend their careers mostly practicing in state courts and in lower federal courts, which are bound by these doctrines. Whatever their basis and however much they might agree or disagree, students still need to learn the legal doctrines.

    Second, I need to affirm their intuition that decisions often are a product of who is on the bench and their need to make arguments which will appeal to the judges they are before. To be sure, there are many decisions and rulings that will be the same regardless of the judge. But that is not true for the Supreme Court and often not for courts at every level. When I have an appellate argument, I want to know my panel as soon as possible. There are times I look at it and feel confident, but there also are times I realize I could let my puppy argue the case and I would have no less chance of winning. 

    My task is to help students develop the skills to argue before the judges they will appear before. With many justices and judges now embracing originalism, they need to learn how to make originalist arguments no matter how much disdain I have for it as an approach to constitutional interpretation.

    But I offer no sense of law that exists apart from the people who make it. Judges, including trial judges, often have great discretion, and how that discretion is exercised depends on who is on the bench. I always tell my students, especially first-year law students, of the first time I ever was in a courtroom. I was in the eighth grade, and it was over my December vacation. My dad worked in a home improvement store, and someone gave him a bad check. He was a witness in a criminal case in a courthouse on the South Side of Chicago. I guess I had already expressed interest in law, so he brought me with him. The case before his involved someone allegedly stealing something from someone’s mailbox. At the end of the short trial, the judge said to the defendant, “I find you legally innocent, but morally guilty. I sentence you to a year in jail.” I turned to my dad, who never went to college or law school, and asked, “Can the judge do that?” My dad, in words I’ll always remember, replied, “He just did.”

    Third, I must give my students the tools for critical appraisal and to develop new theories of their own. A crucial message from the first day of law school must be that just because the Supreme Court says so does not mean that it is right. Students need to have the ability to critique (and praise) decisions and the tools for devising new and better approaches to the law.

    Students need to be reminded that the law is not static, it will change, and it can be improved. They need to think about how to make it better and how to get there.

    Fourth, I must do a better job of exploring alternative forums for bringing about change, especially for progressive students who do not see the U.S. Supreme Court as a hospitable forum. I need to do much more in my class—and in my law school—to teach about state constitutions and the use of state courts, as well as about using legislatures and organizing social movements.

    Finally, we must provide our students with a basis for hope, and it cannot be false hope. For me, the hope for the future comes from my students and their talent and passion and idealism. I also take hope from how over the course of American history there have been enormous advances in equality and freedom, although there is a long way to go. Dr. Martin Luther King Jr. was right when he said that “the arc of the moral universe is long and it bends towards justice.” But the students need to know that will only occur if they work to make it happen. At our commencement this past May, I addressed this and invoked the words of the late John Lewis, “Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble.”

     As a dean, my awareness of our difficult time has made me realize that there is a need for strong steps to make law school a place where all students can feel included and safe and that they belong. Some of this is the need to create new structures, such as faculty or staff positions focusing on equity and inclusion, and some is providing additional resources, especially for mental health for our students, staff, and faculty. Some, too, is looking for ways to rebuild community and bring people together after a pandemic that kept us physically apart.

    At the same time, law schools must aspire to be places that model civil discourse, where all views can be expressed and everyone, regardless of ideology, is treated with kindness and respect. As deans, we must articulate this as our vision and then look for ways to implement it.

    And law schools must play a conscious role in looking for solutions to the world’s seemingly intractable problems. Through faculty research and advocacy, through our clinics and centers, we must look for ways to use the law to make a difference.

    I often am asked what gives me hope at this difficult time for the rule of law in our country. Without hesitation, I answer, my students. I believe that their passion and their commitment to justice offer the best hope for the future.

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    Erwin Chemerinsky

    Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law

    Erwin Chemerinsky is dean and the Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.  He is the author of sixteen books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction.