Legal Commentary

If your field is anything like mine (Criminal Law, Criminal Procedure, Federal Courts, etc.) there are certain doctrines that you're compelled to teach that simply seem wrong.  I'm talking here not about a case or two that you disagree with, but an entire line of cases that frustrate you to teach.  They're doctrines that you can't explain to lay people; that the students rebel against; that you can't make an argument for with a straight face.

Some of these mistakes get remedied relatively quickly by courts while some of them persist for years.  For example, one of the embarrassments for many years in Criminal Law was the fact that sentencing judges were able  to consider conduct of which the defendant had not been convicted, even conduct of which the defendant was acquitted, when determining the  appropriate sentence.  The Supreme Court remedied this (more or less) in its decisions in Apprendi, Blakely, Booker, etc.; now it seems relatively obvious (to everyone but Justice Breyer, apparently) that such a practice was inherently unconstitutional.

In Criminal Procedure, one of the worst lines of decision that remains unremedied is  the doctrine represented by Smith v. Maryland and United States v. Miller. In those cases the Supreme Court held that a criminal defendant who has conveyed information to anyone for any purpose has lost an expectation of privacy in that material vis-a-vis the government.  These cases were decided more than 20 years ago and their continued viability makes less and less sense each year.  In a world where information dissemination is essentially omnipresent, the idea that you don't have an expectation of privacy in your bank records or the phone numbers you dial because you have shared that information with your bank or phone company flies in the face of common sense.

I've never known how to teach these doctrines.  I try very hard in class not to fall into the law professor cliche of telling the students how wrong the Supreme Court has gotten a particular case, but these doctrines definitely test my resolve.  So what do you do when you come across one of these blind spots in your field?  Do you identify it as such?  Do you using it as a teaching opportunity?  Do you just announce that you find a particular doctrine indefensible and move on?