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