31 March 2006

Are Law Professors Prophets?

A March 24, 2006 opinion piece by John E. Banzhaf III in the Chronicle of Higher Education entitled "When Law Professors Don't Know the Law" (at B20) has very little good to say about the law professors who backed the law school positions in litigiation over the Soloman Amendment in the case of Rumfield v. FAIR.

How could so many nationally known law professors at top law schools . . . have vbeen so wrong in how they cose to challenge the Solomon amendment and in asserting that the statute violated the First Amendment under no less than four different constitutional theories? Every single justice who participated . . . ruled without exception that every legal theory the law profesors advanced was without merit.

If all those top constitutional scholars honestly believed the arguments that they publicly presented . . . they were so clearly mistaken that it casts some doubt on their competence. To incorrectly predict one Supreme Court decision is not unusual, but when all of their different constitutional arguments fail to sway even one justice (and even to the point of writing a concurrence), red flags should go up.

On the other hand if the law professors knew that their constitutional arguments had virtually no chance of being accepted in the high court, there is a certain hypocrisy in making those claims over and over again in public, including perhaps in their classes, and even a reckless disregard of the constitutional challenge that could easily backfire -- which it did.

As Oliver Wendell Holmes reminded us, "law is nothing more pretentious than the prediction of what courts will in fact do," and law professors are supposed to be learned in the law and to teach it to law students. . . . It is not, and should not be, a statement of what law professors teaching constitional law, no matter how learned, think it should be or how they hope it just might be, based upon their concerns about the underlyingh interests of gay people or their desire to control acess to their campuses.

Instead, they owe their law students, and indirectly the public, the benefit of their best efforts to predict how the justices would rule. When all of their predictions turn out to be so wrong, it only leads credence to the arguments that we law professors live in ivory towers oblivious to the real world, or that our publicly expressed opinions are based more on liberal guilt than hard-nosed and meaningful real-world analysis.

In short, in the view of Professor Banzhaf (he is himself a law professor), the nature of the job of a law professor is to be a prophet and to teach prophecy.

In my opinion, however, this isn't the job of a law professor. First off, predicting how courts will rule is just that, prophecy.

While Professor Banzhaf complains that the law professor's theories were rejected (indeed derided by many members of the court), the truth of the matter is that I can't point to anyone who got the Supreme Court's ruling in the case right. No one predicted that the Court would rule based on the argument that the power to raise Armies allowed Congress to mandate access of military recruiters to private campuses even in the absence of financial strings, and little in the case suggested that the courts would be inclined to go there. Likewise, I can't recall anyone who would have predicted that the Court would rule that while military recruiters must be given access to campus to recruit that even the administration is allowed to institutionally organize protests against their presence designed to make them unwelcome and treat them unequally compared to other recruiters.

Indeed, the fact of the matter is that the Supreme Court routinely makes unanimous decisions, and these unanimous decisions routinely overturn equally unanimous decisions of the courts below. Predicting the decisions of the Supreme Court is uniquely difficult because unlike other Courts no precedent binds it. Losing in a unanimous decision from the United States Supreme Court is not a sign that your argument was frivilous.

Indeed, often, particularly when circuits are split, it is the result that is mandated by our system of precedent. Each circuit must follow the precedents in their circuit, and if one of those is wrong, in the opinion of the U.S. Supreme Court, then the trial judge and court of appeals panels in that circuit are required to make the wrong decisions even if they strongly suspect that every judge of the U.S. Supreme Court might rule otherwise. Furthermore, such a split is one of the clearest pieces of evidence that what the U.S. Supreme Court does is to make law based on policy choices, rather than act as a neutral umpire. Learned appellate justices considering precisely the same issue of federal law, not infrequently come to opposite and unanimous conclusions.

Likewise, it isn't unheard of for the U.S. Supreme Court, facing the same issue on multiple occassions, to flatly reverse itself. The case of the constitutionality of executing a defendant who was seventeen at the time the crime was committed is one of the most recent examples of this phenomena. The constitutionality of the death penalty itself, is another. This is particularly true in the venue of constitutional law, which actually makes up a minority of the court's docket. Courts are often very rigid in adhering to precedent in the case of statutory interpretation, because Congress can always change a law if it doesn't like the way that it has been interpreted. But, they tend to be less rigidly bound by precedent in interpreting the Constitution, because they are the only people in the position to correct a ruling that in hindsight appears to be a poor decision, absent the most extraordinary circumstances.

Indeed, while the Constitution has been amended a number of times in the past 230 years, only a handful of amendments (the 11th, part of the 14th, the 15th, the 17th and the 24th) were in any meaningful way a response to decision of the U.S. Supreme Court on Constitutional issues. The 11th arose from concerns about the scope of sovereign immunity for states under the Constitution, the 14th, 15th and 24th all addressed a continuing inability to have the Courts use sufficient vigilance to prevent racial discrimination, and the 17th settled a long line of litigation over the Constitutionality of the income tax.

Constitutional law today, looks nothing like it did when today's law professors were in law school, and less still like it did a century ago. There is every reason to believe that when today's law students are senior law professors, that constitutional law will evolve into something equally different.

So, if it is almost inherently impossible to predict what the Supreme Court will do, what is the job of a professor of constitutional law and why? The answer, far from being out of the ivory tower, has everything to do with what practicing lawyers do, and is reflected in how law is taught.

The reality of life as a practicing lawyer is that you take your clients as you find them. In a large metropolitan area, you may have only a dim idea of the temperment and judicial philosophy of the judge whom you happen to draw, and that judge may have nothing in their background that gives you any clue about how they will rule on your case. The head of the criminal division of the general jurisdiction court that handles felony cases in Denver, for example, as he explained in the April 2006 issued of "The Docket", which is the Denver Bar Association's monthly journal, spent his legal career prior to being a judge as an insurance defense lawyer (i.e. the kind of lawyer who defense you when, for example, you have been in a car accident and are sued) who had almost no contact whatsoever with criminal cases.

As a practicing lawyer, you rarely have the luxury to ponder what the "right" decision in a case will be, and your audience is surprisingly rarely the judge. Your job, instead, is to be aware of all of the legal theories that are out there, to identify the ones that could do your client any good, and to argue them persausively, most often to opposing counsel. Not infrequently, the most persausive argument in the eyes of the opposing counsel with whom you are negotiating, or even the trial judge, will be an argument that has not been a winner in similar appellate court cases decided on the subject. Almost as often as not, even when a judge rules in my favor in a case, the ruling is on the basis of an argument that I felt was legally less likely to win in the unlikely event of an appeal, than another argument that I made that was rejected. The law in inherently muddy in a very large class of cases.

Yes, as a practicing lawyer, part of the job is to predict what the Court will do. But, in practice, the outcome of really clear cases are clear, not because of the clarity of the appellate court rulings interpreting that area of law, but because the evidence is exceptionally uncontrovertable. And, yes there are safe harbors of settled case law in ordinary run of the mill cases. If the Plaintiff's evidence in a traffic accident case includes a videotape of your client running a red light, or you are caught red handed with a bag full of cocaine in a search that a bus full of people see's you consent to, or a payment is not made on a straightforward promissory note, you have to fold. But, the more multi-dimensional a case is, the less rarely cases like it arise (and Rumfield v. FAIR is not a run of the mill case of a type that courts handle every day), and the more the evidence is equivocal, the harder it is to predict a result. Very few cases with these kinds of issues settle for the amount demanded.

Indeed, contrary to the claim of Professor Banzhaf, cases like Rumsfield v. FAIR do not inevitably wind up in the U.S. Supreme Court. The U.S. Supreme Court often denies certitorari in even constitutional cases of great public interest (when it takes just 80 or so cases a year, it must), and particularly in multi-dimensional cases asking for injunctive relief, elaborate settlements are the norm rather than the exception. Most of the big school desegregation cases, for example, were resolved with settlement agreements, as are most of the big cases involving envirnomental regulation. Cases like these settle precisely because no one can be sure how they will turn out on the merits, and go to the U.S. Supreme Court primarily because the non-economic stakes are so high, the parties have deep pockets, and the dispute is so stark because of the entrenched positions of the parties, that no settlement is mutually agreeable. Another administration might have settled this case, but this particular configuration of parties could not for institutional reasons that apply to each of them, although predicting the intransigence of parties is far outside the usual law professor's purview.

Customarily, constitutional law classes do not even spend so much as a day or two in which the professor teaches the "black letter law" or purports to know what the rule of law is in a case. Law classes are taught socratically. Students do most of the talking and the emphasis is on having them argue intelligently and orally, with only modest preparation, in the classroom, in the face of withering criticism from a more skilled rhetoritician, the professor.

Constitutional law classes are also exceptionally transparent. While physics and chemistry classes, for example, only occasionally provide students with the journal articles that gave rise to the conclusions stated in the textbooks, and history classes are generally taught primarily with secondary sources except at the most advanced level, constitutional law classes are universally taught by having students read verbatim from the cases decided by the judges themselves, with the students left to draw their own conclusions regarding the rules of law enunciated therein. A typical constitutional law textbook is written 90% by the U.S. Supreme Court and 10% by the professor (or less), although the professor, for some reason, gets 100% of the royalties.

Arguing that law professors are not competent because they cannot predict how the U.S. Supreme Court will rule, then, is hardly a valid criticism of them as law professors, because they do not "owe their law students, and indirectly the public, the benefit of their best efforts to predict how the justices would rule," in any case. Telling people what the law is, is the job of judges. Many law students wish that law professors were in that business, but I have yet to encounter a law professor who actually did that with regard to any point of law.

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