ConLaw Can Wait

The interesting PaulsenLevinsonLund three-way reminds me of a recommendation made by Vanderbilt
law professor Suzanna Sherry a few years ago (at an AEI seminar—I don’t know if Suzanna has written it up some place): whatever you may want to teach in ConLaw, you certainly don’t want to teach it in the first year of law school. It tends to bring out the worst in students. They read Supreme Court opinions and quickly “conclude” that no sensible person can be a legal formalist and/or textualist. This supposed insight then often prompts the conviction, usually expressed with an air of self-conscious sophistication, that law is nothing but politics. 

The impulse is understandable, but hardly inescapable. For example, it’s very hard to be a formalist about antitrust law. Still, we don’t treat it as merely politics in drag. Most of us take the doctrines seriously. We teach them as “real” law, and we don’t usually encounter student resistance of the “it’s all politics” variety. If students’ intuitions and legal reasoning were formed in these more disciplined areas rather than the three-ring ConLaw circus, they might find it easier to resist the false choice between crude formalism and crackpot realism.