Constitutional Law, Featured, Legal, National, Rob Natelson, Uncategorized

Natelson: How law professors mislead

The expert panel on impeachment in the House Judiciary committee consisted of four law professors—not one of whom was a conservative or a Trump supporter.

Unfortunately, the panel reflects the faculty imbalance in our law schools.  Because of this imbalance (and a lot of sloppy faculty scholarship), law students often are subtly indoctrinated in a leftist vision of the law without anyone realizing it is happening.

For example, when I began teaching constitutional law, I surveyed the available constitutional law course books. What I found was a waste dump of pedagogical malpractice—but one that reflects how most constitutional law courses are taught.

For example, most of the books treated constitutional law as essentially beginning in 1803 when the Supreme Court decided Marbury v. Madison. They paid little attention to the 600-year Anglo-American foundation that supports the Constitution and contributes much of its meaning.

In Marbury v. Madison, Chief Justice John Marshall announced that the court would not apply an unconstitutional statute. Because of how constitutional law is treated, students sometimes get the idea Marshall made this up—an activist judge’s power grab. In fact, the idea that courts should strike down unconstitutional statutes was discussed at length during the colonial era. It was discussed and welcomed during the debates over the Constitution’s ratification.

This is only one example of how Marshall is misrepresented in many constitutional law courses—as a sort of a modern-style “big government,” activist justice. (That’s supposed to be a good thing.) In fact, he wasn’t.

On average constitutional law texts devote two thirds of their coverage to less than two percent of the Constitution. The favored portions are (1) the First Amendment and (2) two sections of the Fourteen Amendment. Why these portions? Because, I think, they are provisions in which liberals are obsessively interested: They include lots of cases about race, gender, abortion, and porn.

Imbalance occurs in other courses as well. For example, a common narrative is that during the 19th century—the evil age of wicked laissez faire capitalism—the courts were very anti-consumer. If a product or a house was defective and the consumer learned about it after purchase, then supposedly the judges just said “tough luck.” More precisely, they said it in Latin: caveat emptor—“Let the buyer beware.”

Supposedly they stuck it to the consumer because they were free market ideologues and/or in the pockets of big business. They favored business by shafting the public.

After I became a law professor I investigated this story and learned it was a crock.

Actually, caveat emptor was only part of a larger saying: Caveat emptor qui ignorare non debuit quod jus alienum emit. Loosely translated, it means “Don’t buy stolen goods.” More precisely, it means that if you purchase something when you should know the seller really doesn’t have clear title, then you can’t cut off the real owner.

The original caveat emptor rule had nothing to do with physical defects at all.

When I started reading 19th century cases involving defective products, I learned the courts actually treated the parties very fairly. If the seller was guilty of fraud or misrepresentation, the seller lost and had to pay the buyer.  If the defect was hidden, the buyer also generally won. In that case the courts said the seller had given the buyer an “implied warranty of merchantability”—an unspoken guarantee of quality. If the defect was not exactly hidden but someone in the buyer’s position wouldn’t have noticed the defect, then the buyer still won. Another implied warranty of merchantability.

The buyer lost if the defect was obvious at the time of sale or the buyer didn’t examine carefully what he was buying when he bought it. In that case, a judge might utter, “Caveat emptor.”

But a whole generation of law students has been trained to think that the 19th century courts were heartless tools of malicious capitalists, and that enlightened reform came only with the virtuous 20th century “progressives.”

Does this kind of indoctrination have real world consequences? You bet it does. Law school is the only time when most attorneys undertake full-time education. Many carry their law school experiences with them throughout their professional careers. Law school affects how they serve clients and argue to judges and juries. It probably affects how they vote. If they become judges, it may affect how they decide cases.

Fortunately, some lawyers overcome the damage, but many never do.

So if you want to reform in our overly-activist judicial system, insist on more balance and better scholarship in our law schools.

Rob Natelson served as a law professor for 25 years, and is nationally known as a constitutional scholar. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, and author of The Original Constitution: What It Actually Said and Meant (3rd ed. 2015).  A version of this article first appeared in Townhall.


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