Scalia: Take “Bread and Butter” Courses Not “Law and Women”

Associate Justice Antonin Scalia has long proven a lightning rod on the Court, particularly his consistent and controversial habit of making highly charged public comments. I have previously criticized him and other justices for the increasing public speeches, often to highly partisan groups, that undermine the legitimacy of the Court. This week Scalia raised eyebrows in his advice to law students not to take “Law and Women” or “Law and Poverty” courses which he says amount to little more than professors teaching their “hobbies.”

Scalia struck out at “frill courses.” He started out well by correctly noting that “[t]he only time you’re going to have an opportunity to study a whole area of the law systematically is in law school.” As a law professor who litigates, I also emphasize such courses and try to incorporate real-practice elements to my courses. However, I also teach legal history and theory in all of my courses, including my first year classes that range from feminist theory to economic theory to Hegelian theory. I believe that such theoretical knowledge deepens a lawyer’s understanding of the law, including the practice of law.

Scalia however saw things a bit differently and offered a strikingly anti-intellectual view of such courses: “You should not waste that opportunity. Take the bread-and-butter courses. Do not take, ‘law and women,’ do not take ‘law and poverty,’ do not take ‘law and anything.’ . . . Professors like certain subjects that they’re writing a book on, so they teach a course in that subject . . . Because there are so many professors teaching their hobbies, the rudimentary courses are not taught with the frequency necessary for everybody to take them.”

That is a disturbing account to give students and serves only to “dumb-down” legal studies. My students will be better lawyers but not only learning about the practice but the philosophy of law. It is both possible and, in my view, essential to get both in your training. I am distinctly proud of my student’s in their ability to move seamlessly from the theoretical to the doctrinal in class.

It is also highly ironic to read Scalia’s account which will be used by some who want to teach law as a type of trade school. National law schools have long ago rejected that model. Those are the very schools that Scalia identified as the only institutions from which he would take clerks. I previously criticize Scalia for his comments that students at most schools should not hope to become Supreme Court clerks because those positions are reserved to the top schools.

I am disappointed in the recent controversial comments by Scalia because he reflects a deep understanding of legal theory and history in his writings. His opinions are greatly benefited by that deeper knowledge. Student gain such theoretical foundation by taking these seminars, which often inspire or challenge the view of law students. Lawyers are not accountants who merely tally columns of precedent. They are part of an organic and ever-changing field. The current laws are changed by the powerful legal theories and policies that constantly move beneath the legal superstructure.

No school teaches primarily through seminars with such specialized subjects. Rather these are electives that allow students to drill down on areas of particular interest, often exploring the impact or the rationale for legal doctrine. It is terribly disappointing to see a justice criticizing such courses and downplaying their value in legal education.

Source: ABA Journal

67 thoughts on “Scalia: Take “Bread and Butter” Courses Not “Law and Women”

  1. Since the justices don’t write their own opinions (I have a good friend who clerked the USSC & this tidbit that he was writing opinions was a major shock) I don’t doubt your framing that Fat Tony’s opinions are great legal writing showing a different person than his public spew. But it still does not indicate the man is qualified for the job he has

  2. “And most certainly don’t take ‘Logic and Legal Reasoning’. I found that was a not only useless but counterproductive course. Almost as useless as Constitutional Law.” – A. Scalia

  3. Dumb dowing has started….. Is he just furthering the trickle down……At his age he must be careful….

  4. Justice Scalia has long been an embarrassment on the court. He is politicizing the court and I for one have lost faith in this branch of government.

  5. Justice Scalia… do US all a favor, already, and cash in your chips. Geebus has a special spot reserved for you in Hell…………

  6. “Satan, still laughing, turned to his favorite demon Beelzebub and said, ‘A lawyer? We already got one and he’s better than this one.’ And thus lil’ Tony ended up in Purgatory.”

  7. “He reflects a deep understanding of legal theory and history in his writings.” Such an interesting observation but it shouldn’t set you up for being surprised that he doesn’t want any one else to understand how jurists have often perverted the law in the US to oppress the very people, real humans, that many of the laws were actual enacted and crafted to serve and protect. The problem with praising a man like Scalia for being intelligent or knowledgeable is that you wrongly give his views legitimacy that they do no deserve. Justice Scalia is a prejudiced partisan whose biased and pro corporate views have resulted in decisions by the Supreme Court that have severely damaged if not destroyed any serious belief that the law works for the people.

  8. Judging from Fat Tony’s girth versus his height, plus his age, it it probably a safe bet that his arteries are pretty well clogged. Hope springs eternal.

  9. ” Lawyers are not accountants who merely tally columns of precedent.”

    Professor Turley should have used the term “bookkeeper”. In the U.S. a true accountant must be certified by passing a multi-part exam (CPA exam) that includes parts such as theory, practice, and law. The names of parts have changed since my bookkeeping days but you get the picture. One of the critical activities that accountants must do is classify assets and liabilities. I can hear the yawns now but consider that there were theoretical and practical issues to consider when financial derivatives came on the scene. Are these assets, liabilities, something else? How should they be valued? Derivatives? Who cares about derivatives anyway? Um, everyone as of 2008.

  10. Justice Scalia is a insult to the profession. This so-called justice is in the pockets of any corporation that comes calling. Especially if they come calling with gifts! Scalia won’t have to worry about Hell because his decisions are creating one here on earth.

  11. A Supreme Court nominee should have some variety in his/her legal career to qualify for the Court. If I was nominating I would require: 1) representation of criminals in serious jury trials, habeas and appeal; 2) constitutional jurisprudence including civil rights cases (pro or con) under section 1983 and this means trials and appeals not law review articles from Harvard or Yale; 3) civil jury trials in tort cases; 4) civil jury trials in complex litigation involving class actions. Not one of the present sitting justices have all or any of these qualifications. Geography. Right now we have six judges who speak turdy turd and a turd– meaning they are from New York or New Jersey. We need diversity from places like the big fly over and from down south.

    Now, getting to law school curriculum. They do not address constitutional law studies coherently. There are two sides of the aisle taught: criminal law with some constitutional aspects and a broad shallow con law I course. There are some other electives. The history behind our constitutional framework needs to be taught– i.e. the Bill of Rights of 1688 do have some relevance here folks. The “Second Revolution” or Reconstruction period in which the 13th, 14th and 15th Amendments were passed needs to be discussed and the constitutional history from 1865 to Citizens United needs to be taught. All lawyers who practice law in any fashion are controlled by some aspect of constituional law in their sphere. That includes the banker who never sees a client other than bank trustees. It is possible that any lawyer in the U.S. with a law license could be appointed by a court to represent an indigent criminal defendant. How up to speed are 90% of American lawyers? Not.

    Law and poverty should be a seminar. So should Bush v. Gore.

    Law schools ought to have a seminar on “Originalism”. This should be an unvarnished look at how the Original Framers of the Original Constitution and the Ten Bill of Rights thought and what they intended. We should look to see if they would approve of Italian Americans like Scalia being appointed to the Court or women or other minorities. I bet they have rolled over in their graves so much that there is room for more in the graves. There ought to be a seminar on Citizens United. And one on removing federal judges from office.

  12. Oh please, he’s just a crook. Maybe not garden variety, but nonetheless. If I wanted to decide what college or law school courses to take I’d want advice from somebody I respected. Anybody who takes HIS advice deserves it.

  13. FB, You’re correct. I think we need to return to the gentlemen’s agreement and have no Catholics or Jews on the Court. We need to return to the all WASP court. This is what happens when Italians move into the neighborhood!

  14. “The problem with praising a man like Scalia for being intelligent or knowledgeable is that you wrongly give his views legitimacy that they do no deserve.”

    Justice Holmes points out that heaping praise on such as Scalia provides him legitimacy. However, how is it that someone of intelligence can find himself so astray in a field in which he has proven knowledge? My take is that we often conflate knowledge and intelligence with insight and depth.
    Stupidity can be said to be the lack of intelligence. Ignorance is a different matter. One can be incredibly intelligent, yet abysmally ignorant. Their is no dichotomy there because ignorance is the inability to accept ideas that interfere with ones own pre-judgments. Scalia may well be an intelligent man, yet he is also a profoundly ignorant one.

  15. mespo:

    what is poverty law about? what is womens law about?

    One thing I dont understand is why do poor people and women need special law, doesnt the law take care of the poor, minorities and women? Isnt the law meant to protect the individual?

  16. Bron:

    “One thing I don’t understand is why do poor people and women need special law, …”


    They really do since their issues involve unique questions of law applicable to their particular circumstances. Obviously, women’s “law” involves equal pay for equal work, reproductive rights, and the myriad of other issues that appertain due to both their gender and historical differences in legal protection or the lack thereof. Poverty law involves government benefits, housing issues, legal assistance, and Social Security law. These are topics I encounter every day and wish they would have been offered in the Dark Ages when I went to law school.

    Scalia wants a return to the first year law school basics which is not a totally unreasonable approach but his method of disparaging other meaningful areas of legal study does him no credit. These are not just “hobbies” but are real issues that affect the lives of real people without the social security a judge for life enjoys. We can do without Scalia’s “let them eat cake” attitude.

  17. nick,

    “Great clip. Those dumb guys laughed all the way to the bank.”

    Actually, they didn’t. They weren’t starving or anything, but in the 1950’s they became a case study in getting screwed by the IRS in addition to both of them being heavy gamblers. The IRS liens forced them both to liquidate the majority of their assets in the mid-50’s.

    But they were indeed funny in the extreme.

  18. I don’t know if this was Justice Scalia’s intent but there is something to be said about taking majors in college, not just a couple classes but entire fields of study, which have essentially few opportunities to earn a career in, other than prepetuating the subject by becoming employed as academics in it.

    People are free to study what intersts them but can several thousand people nationally really expect to find employment as a poet after having majored in Victorian Era Poetry? Yes, there might be one or two, yet how many would have found more gainful employment if they studied something more practical?

  19. mespo:

    but doesnt “regular” law encompass those issues?

    As far as poverty law goes, isnt the real issue access to good council?

    Access to legal council is the problem, at least as I see it. The issues faced by the poor, minorities and women are no different than those faced by white males, white males just have better access to legal council. And can afford to make the problem go away.

  20. “they became a case study in getting screwed by the IRS”

    the IRS never screws people. They are a benign force for good in this country. They facilitate redistribution.

  21. Gene, The IRS Gestapo show no mercy. During WW2 the great Joe Louis did numerous charity bouts w/ all the proceeds going to groups that helped soldiers and their families. After the war the IRS nailed him big time for not paying taxes on some of his regular bouts.

  22. Bron,

    The Nirvana fallacy. The system is imperfect. It always will be. The goal is to minimize such errors. The issues with the IRS could largely be mitigated by simplifying the tax code and taking steps to ensure equitable enforcement. Oh, and tell that to Willie Nelson and Wesley Snipes: two guys who got screwed by the IRS because they had bad businesses managers/advice. If you in good faith rely upon allegedly expert advice and it results in sever penalties and jail time for tax issues? I’m a firm believer that the equitable solution is smaller fines to those who suffered from detrimental reliance and that the managers/advisers should bear the brunt of the penalties and all of the jail time.

    None of which changes that Scalia is an embarrassment to both bar and bench.

  23. “I’m a firm believer that the equitable solution is smaller fines to those who suffered from detrimental reliance and that the managers/advisers should bear the brunt of the penalties and all of the jail time.”

    I think that would put a good many lawyers and accountants in jail, probably doctors and other professionals as well.

    Maybe Willie and Wesley need to take more interest in their affairs?

    Just because someone has a state license doesnt mean they are any good at what they do. only 50% of the people who take the PE test pass the first time. Next time you hire an engineer 1 out of 2 failed to pass a test that really isnt that hard.

    It is up to the client to determine the level of competency of the professionals they hire. Just because someone has a PE doesnt mean they can competently design a multi-story building. The professional has a duty to understand the limits of his competency but the client should check out the professional. If he doesnt he bears responsibility for bad actions taken on his behalf.

  24. With well over 4,500 crimes in federal statutes, bread and butter courses aren’t going to suffice.

    If I were a law student I’d think about specializing in crimes while on or near Federal land like the ones outlined in the Archaeological Resources Protection Act of 1979 and the Wilderness Act of 1964.

  25. Bron,

    What exactly do you think is at the core of the majority of professional malpractice cases regardless of the particular field?

    It’s usually where someone who isn’t an expert has reasonably relied upon the advice of an expert (or alleged expert) to their detriment. It’s the same in every professional field from architects to surgeons. You are paying money not just for a service but for their professional expertise which you the purchaser lacks. That caveat emptor may be one of your laissez-faire ideals, but that’s not how contracts for professional services work in general.

  26. Gene H:

    People should check out any professional they hire. Kick the tires ask for references, speak to former clients/patients. Do your due diligence prior to hiring someone who is going to have an affect on your life.

    That seems pretty straight forward to me. A contract protects you after the fact, what you want is not having to rely on your contract for protection.

  27. Interesting…… Blouise. My daughter had taken some seminars and clinics. This semester it is “Legislative Lawyering”.

  28. as a non-lawyer in an ever increasingly complicated world hinged often on legal documents that are un-interpretable by lay persons….why haven’t Law schools expanded to add on an additional year to accomodate for all the new laws and intellectual complications etc. that are accompanying the worlds changes and expansion? And why no additional requirements ie: internships in the SAME MANNER that Doctors must complete before being lisenced to practice?….as long as we are talking sense…..

  29. Bron,

    I’m not saying purchasers shouldn’t perform due diligence. I’m saying that the contractual relationship between professional and client isn’t as simple as you are trying to paint it. Due diligence or not, a professional is not just selling a service, but their professional expertise and that in itself has value and part of that value is that the client is relying upon said expertise in providing both advice and services. Reasonable reliance/detrimental reliance is at the heart of almost every malpractice case. That’s just how it is, Bron, your laissez-faire fantasy of the situation notwithstanding. Someone can have an excellent Martindale-Hubbell ranking (a ranking service for the legal profession) and still get sued for malpractice if they give a client bad advice that the client relies upon to their detriment.

  30. SwM,

    Well, from what I read many of these “criminals” have no idea they are breaking the law when it comes to those two acts I mentioned (and others I didn’t mention). And, since the need to prove intent is absent from so many of these laws the person charged is really stuck.

    Prosecutors and Judges love ’em cause it’s easy-peasy prosecution and conviction resulting in huge fines and, in many cases, mandatory prison time which is good for those who want a strong record of law & order on their resume.

    These are normal citizens digging for arrowheads, musket balls, snowmobiling etc. They don’t even have to be on federal land as some of the laws have been amended to included privately owned land adjacent to federal land. It’s crazy and it seems to me that a lawyer who familiarizes him/herself with these laws and keeps up with the changes and additions (which are constant and numerous) would have a wealth of fairly sane and ordinary clients.

    Many states, seeing the money-making possibilities, have adopted their own similar laws to cover state lands.

    Just pick a state that has a lot of federal and state owned parks/land to set up one’s practice or promote one’s specialty and join a firm already located in the area.

  31. Gene – you might point out also that it is impossible to perform useful due diligence on any sufficiently complex subject unless you have specific knowledge in that area. If someone were going to build a bridge they are going to hire someone with extensive experience and training in engineering but they are not going to be able to verify that the person didn’t screw up somewhere. Thats why you hire a pro.

    You might also bang your head against your desk for 20 minutes – it would be as useful as tying to convince Bron that the world does not fit is childishly simplistic world view.

  32. Gene H:

    Stuff happens, that is why you carry liability insurance. Which is one of the things a potential client ought to ask about.


    you can, as a layman, do your due diligence to try and chose a good professional who will minimize the possibility of F. U. B. A. R..

    But all bridge builders are not equal and it is up to you to figure out which one is the best you can afford. You do that by research.

    That is the problem with many people, they take someone’s word for how good they are and dont check into it for themselves.

    I would say it is childishly simple, if your are of sound mind, to call around and do a search on the internet. If you are too stupid or lazy to do so, you deserve the fuching you are most probably going to get.

  33. Bron,

    That response simply illustrates that you really don’t know you are talking about. The point was that even with due diligence malpractice can and does happen. Whether the professional is insured for it or not is beside the point of the cause of action. And what Frankly said.

  34. Gene H:

    People can and should do background research on anyone they hire who can cause them financial harm.

    While it doesnt prevent the harm it can lesson the probability.

    Do you hire the drunk lawyer down on his luck?

    If you hire that guy, you deserve what you get.

  35. Bron,

    Seriously man. Give it up. You really don’t have a clue as to what I’m talking about. You’re not even in the same ballpark and quite frankly it’s not worth the effort to get you to the right one on this issue. Your Randian superman ideals are simply in conflict with the reality of professional services contracts and I don’t feel like explaining promissory estoppel to you (which is relevant to explaining detrimental reliance). Go take a course on Law of Contracts to see how wrong you are if you are interested.

  36. Gene H:

    I am not saying you are wrong about the law, I am just saying you should check out who you hire and it has nothing to do with supermen.

  37. Then you should have a clue as to why even if you check out a professional and you rely upon their advice and that advice turns out to be both wrong and harmful to you that they should bear the brunt of the consequences for that bad advice.

  38. Gene H:

    good luck with that. That is why there are limit of liability clauses and arbitration clauses as you well know.

  39. Then maybe you should ask them about professional services contracts and detrimental reliance, because you clearly don’t know what you are talking about, Bron.

  40. I would like to have my Congressman introduce a bill to repeal ScaliaCare. All federal judges get free medical care for self and family for life. This is not like an employee that has to chip in insurance dues. This is simply all free. Socialism with a Scalia face. I also will ask him to introduce a bill to cut off the Supreme Court Justices salaries for July, August and September when they dont work.

  41. Bron, I used a doctor after whom the surgery I had is named. He paralyzed my face, committed provable negligence, malpractice, and was lack pf informed consent. You can research all you like, you can aks many people. At the end of the day it does not matter. If they are lying SOB’s they will still hurt you. If they are not they acn still not be expert in your particular need but have presented that as part of their resume.
    The lawyer I just won against (somewhat) in small claims court teaches real estate law at Temple U Fox school of business. I thought that meant he knew real estate law but he was unaware of a major statute of limitations problem with the complaint(s) he drafted.
    I am glad you have been luck and your dd worked out. That is not alwats the case and the more I read of ppl’s experiences the less times I find dd was sufficient but found out too late

  42. leejcaroll said:

    ” I used a doctor after whom the surgery I had is named. He paralyzed my face, committed provable negligence, malpractice, and was lack pf informed consent. You can research all you like, you can ask many people. At the end of the day it does not matter. If they are lying SOB’s they will still hurt you.”

    Ugly truth, Lee. And in no societal arena is this more valid than medicine. I am sorry for your funky experience, and do hope you’ve achieved some level of redress.

    Bron said:

    “I would say it is childishly simple, if your are of sound mind, to call around and do a search on the internet. If you are too stupid or lazy to do so, you deserve the fuching you are most probably going to get.”

    Well, no, actually, it is entirely possible to get burned to the bone by errant health care, as one example in many – and being either stupid or lazy often has nothing to do with it.

    Consider the ugly case of physician Visu Vilvarajah, but one of thousands. This fellow murdered his wife & mother-in-law in the mid-1980’s; was found guilty; sentenced to 20 years; released in 5; got his medical license back and went right on playing with peoples’ bodies for money, with little more than a speed bump in his career.

    He made the decision to resurrect that career by pushing more “legal” drugs out the door than a Columbian cartel. So now he’s back behind bars.

    But between his decade of homicides and his recent drug-dealing conviction? Well, you would have found absolutely nothing available about his penchant for murder in either the Arkansas state medical board – which originally licensed him – or that of Tennessee, which saw fit to bless its populace with this health care monster.

    You see, very, very few state medical boards favor patient safety over physicians’ ability to earn a living.

    And when it comes to train-wreck doctors, its the state boards who hold most of the cards.

  43. RE:

    Gene H.
    1, October 29, 2012 at 7:29 am
    “And most certainly don’t take ‘Logic and Legal Reasoning’. I found that was a not only useless but counterproductive course. Almost as useless as Constitutional Law.” – A. Scalia

    * * * * * *

    For those of us who may be curious, can you inform us of the source (and date?) of that Scalia quotation?

    For all I know, I may not be the only one who reads the Turley Blog with a remnant of neonatal curiosity lingering on.

  44. Patrick:

    That is an interesting story. how do you know about it?

    How many people die from medical malpractice, isnt it around 100,000/year?

  45. Bron –

    I don’t want to be perceived as hijacking the blog here, and the only reason I mentioned it at all, was in response to Lee’s unfortunate experience. Because it happens a thousand times a day.

    So here’s the short of it. As a career medic, my partners & I have been called out on many thousands of EMS calls, Early on, I was struck almost speechless by how often Medics are required, at clinics & urgent care centers, as a result of errant medical treatment.

    So 35 years ago, I started taking notes. 15 years ago, I joined Public Citizen and their rather impressive cadre in investigators. When I started seeing data like this, I knew I was on the right track for a second career:

    In a mind boggling article published by The Journal of the American Medical Association – Vol. 284. No. 4 – July 28, 2000, the research finally admits they kill 250,000 Americans per year. They estimate the figure to be low, and report these are only the death figures, not the adverse side effects associated with disability and/or long-term injury.

    12,000 – unnecessary surgery
    7,000 – medication errors in hospital
    20,000 – other errors in hospitals
    80,000 – nosocomial infections in hospitals
    106,000 – adverse effects of medications

    So I’ve come to believe we can save more people by enlightenment, that with the niftiest ambulance it town.

    Here’s what we do:

    And thanks for asking.

  46. Patrick:

    our family has been involved heavily with the medical profession and I have seen my share of bad doctors. We have also seen the death of a friends child due to incompetence of a resident.

    One of the best hospitals we have been to is Johns Hopkins. It seems even the janitors take ownership of that hospital.

    You have to monitor the staff like a hawk and question everything they do.

    As one of our regular doctors told us, “you dont have to be smart to get into medical school”. He is right about that and we have seen it first hand.

  47. Patric’s story inspired me to present one of my own in support of what he is saying. Almost a year before my heart transplant I had a device in me called
    and ICD, which is similar to a pacemaker but is for bringing a heart into rhythm if the person goes into distress. It acts like the paddles you see in TV shows that shock the heart. There is a type of doctor call an Electro Cardiologist, whose specialty is the electronic functioning of the heart. Within an ICD or Pacemaker is a little computer that does the job. This can be monitored by a machine. Patients with them go to have them checked (interrogated) about every three months.

    I went to my Electro Cardiologists office for an interrogation. As I was being called into the office I became quite dizzy. The Technician running the machine saw that I was in what is know as Ventrical Tachycardia (VTAC) which is life threatening. The Doctor was called in and saw that my heart rate was 178 bpm, but my ICD was set for 180bpm so it wasn’t going into effect to shock my heart back into rhythm. Rather than using the machine to shock my heart into rhythm, taking me out of this life threatening distress, he chose to call the paramedics. They came rather quickly gave me oxygen and checked my signs. The Doctor seemed to want them to get me out of the office ASAP in a way that suggested to me that he was less worried about me and more about his potential liability. Once in the ambulance the paramedics administered a drug called Amiodorone which immediately put me back into rhythm.

    As has been the case in the many times I’ve needed them, in may parts of the country, the paramedics were wonderful, comforting people, whose presence kept me from panic. VTAC is a extremely life threatening condition and my Doctor had the means at hand to shock me back into rhythm, but chose to let me stay in it ad by doing so my life was in danger for at least a half hour more than was necessary.

    I thank you Patric for your work and the work of others like you. I know from far too may experiences the importance of what you do for people like me.

  48. Mike –

    I am very glad you survived that incident, and that you’re still around to observe; draw logical conclusions, and provide your regular ethical compass here..

    Be well, both Bron and yourself. And lets all hope the Mayan’s December 21st is just another fine day.

  49. Mike S, just a heads-up.

    Check out Irv Dardik in New Jersey. My kid benefitted greatly from his “cycles program.” Not that he isn’t controversial, but you can deal with controversy.

    If you do decide to see him, tell him you were referred by the mom of the kid with AS. Tell him we’re friends of the African American actress he met back in 2004, 2005. Maybe you’ll get a discount, if you want to avail yourself. I don’t KNOW that you will, just maybe… :-) Anyway he has fascinating theories.

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