Friday, January 9, 2009
This week we are in San Diego at the AALS Annual Meeting. Those of you that are here know that it is an awesome program! For those that are unable to attend, we are happy to summarize one of the proceedings. On Thursday, the Section on Constitutional Law hosted a program entited "Is American Constitutional Law in Crisis?" The program began with Jack Balkin (of Balkinization) explaining why he believes that Constitutional Law is in crisis. The program then proceeded with professors Saikrishna Prakash, Alice Ristroph, and Suzanna Sherry as well as Ninth Circuit Chief Judge Alex Kozinski offering their thoughts on the issue. Here are some of the thoughts and question that came out of the proceedings (which will be published in Constitutional Commentary):
1. What is the definition of crisis? Do we define a constitutional crisis as one of interpretation? Or must there be a complete lack of fidelity to constitutional principles. Does public (and/or scholarly) disagrement with a decision or series of decision make a crisis? If there is a crisis, is it a crisis of doctrine or a systemic crisis?
2. What types of actors are creating these constitutional issues? There is the Supreme Court, of course, but there is also the Justice Department (e.g., the torture memos). To be effective teachers and scholars, we should do our best to examine all of the constitutional actors and avoid a myopic view that focuses only on the Court.
3. If there is a crisis, how do acadmics contribute? It was proposed that academics do a disservice to constitutional law teaching when they erase the distinction between the law and politics, fail to educate the public about constitutional law, and fail to write about the actual doctrines of constitutional law. It was also suggested that law schools might consier moving the constitutional law curriculum to the second year, when students will be better able to read cases and to appreciate the distinction and between the legal and the political. They will also be able to understand that constitutional law is neither fully determinate nor fully indeterminate.
This is a brief summary. If you attended the conference, please add your thoughts in the comment section!