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Legal Commentary

: Balkinization

Crisis in Constitutional Law?

By Jack M. Balkin

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Mark Kende, Professor of Law at Drake and current chair of the Section on Constitutional Law has an inspired idea for the program at the next AALS meeting. The program notice is below. Scholars perhaps overuse the concept of a "crisis" (although it is eye-catching), but there is little doubt there are some strange doctrinal developments in U.S. conlaw. Mostly because of Justice Kennedy, I find I have a harder time explaining to students what the "standard" approach to equal protection and substantive due process jurisprudence is supposed to be. But perhaps it is fairer to say the entire Court seems less interested in the sort of hyper-articulated "tiers of scrutiny" which I absorbed in law school as among the most important doctrinal developments of the 1970s. That entire era in conlaw now seems played out. Again, "doctrinal chaos" seems a bit strong, there are always important inconsistencies in conlaw jurisprudence. But more attention should have been paid to Laurence Tribe's announcement, in the wake of the Schiavo mess in 2005, that he could not produce a new edition of his famous conlaw treatise.

2009 ANNUAL AALS MEETING: AALS SECTION ON CONSTITUTIONAL LAW CALL FOR PAPERS: IS AMERICAN CONSTITUTIONAL LAW IN CRISIS?

At the January, 2009 Annual Meeting of the AALS, the Section on Constitutional Law will host a panel asking whether American constitutional law doctrine is in crisis; and, if so, what the causes and cures are for that crisis. One paper from an untenured, non-adjunct, faculty of law member will be included. Its author will join a panel consisting of Professor Jack Balkin, Professor Steven Calabresi, Judge Alex Kozinski, and Professor Suzanna Sherry. The author must be teaching at an AALS member or AALS fee-paid law school.

To submit an entry, send an abstract of your paper (five pages or less, single-spaced) electronically to: amy.russell@drake.edu. She is the assistant to the Section Chair, Professor Mark Kende. Please include your name, institutional affiliation, and contact information on a cover sheet only. All entries will be subject to a blind review by various members of the Executive Committee of the Section on Constitutional Law. Submissions must be received by no later than May 1, 2009. Late submissions will not be accepted. The author of the abstract that is chosen will be expected to produce a 20 page (single-space) manuscript by the time of the AALS panel. If you have any questions, please e-mail Professor Kende (mark.kende@drake.edu).

From the panel description:
American constitutional doctrine appears to have problems. In the commerce clause area, Gonzales v. Raich is hard to reconcile with United States v. Morrison. Regarding substantive due process, the U.S. Supreme Court was cautious in Washington v. Glucksberg but bold in Lawrence v. Texas. Moreover, two similar partial birth abortion cases reached opposite results. On equal protection, the Court states that it has three levels of scrutiny but it actually uses several other variations. In addition the Court in Grutter v. Bollinger said it was using strict scrutiny but was actually deferential in upholding the law school's affirmative action plan. The Court's hate speech decision, R.A.V. v. City of St. Paul, announced that certain categories of previously unprotected expression could sometimes receive protection. Other examples abound. These results make it difficult for lower court judges, lawyers, and the public to know how the Court will decide certain questions. They can also generate charges of judicial legislating. For law professors, this situation makes teaching and doing scholarship more challenging.

This panel will address whether American constitutional law is in doctrinal chaos, or whether these are the acceptable consequences when difficult constitutional questions come before a divided Court interpreting an old constitution. The discussions over Laurence Tribe's decision not to continue writing his treatise illuminated the issue further. This panel of distinguished scholars and jurists will examine these questions and explore the causes of the current situation. It will also examine what role law professors should play in addressing these matters.

Full post as published by Balkinization on February 19, 2008 (boomark / email).