This is a bit different from the usual Ethics Alarms quiz.
Over at Dorf on Law, a site I had forgotten about, Eric Segal poses twenty questions about how Constitutional Law should be taught from this point going forward. They are:
1) Do we teach that we are living in unique times with a unique President raising unique separation of powers, federalism, and rights issues? If so, how do we deal with pro-MAGA students?
2) Do we raise the question whether we are in or facing a constitutional crisis? How do we do that without sounding partisan?
3) Do we teach gerrymandering issues at all now that the federal courts are completely out of that business?
4) How much history of the abortion issue should we teach? Just Roe and Dobbs? What about Casey’s discussion of precedent and Dobbs’ overturning of that part of Casey?
5) How much history of affirmative action should we teach? Can we speculate about what universities might do about essays about race without discussing the non-constitutional issues raised by Title VI and Trump’s war on elite schools?
6) How much time should we spend on Section 3 Disqualification, if it all, given that it is a non-issue going forward?
7) The Commerce Clause has been quiet for a while, so how much time do we spend on pre-1990 cases?
8) If, like me, you start with Marbury, should you teach Trump v. United States right after? Rule of law or rule of men (people)?
9) Is there time to teach any of the military detention cases from Milligan to Boumediene?
10) How do we teach the tension between Griswold/Obergefell and the purely historical analysis in Dobbs?
11) Should we teach old substantive due process cases like Michael H., given that the main combatants in that and other cases were Justice Scalia arguing with Justices Kennedy and O’Connor, and does any of that matter anymore?
12) Is there time to do justice to the dormant commerce clause?
13) Is there time to do justice to standing?
14) Is there time to do justice to the political question doctrine?
15) The Second Amendment is now Heller to McDonald to Bruen to Rahami. That’s a lot of material. Teach all four?
16) What do we do with the dozens of important lower court opinions struggling with the cases in number 15?
17) For most of us, how do we teach originalism seriously since the Roberts Court has killed it as a substantive matter but relies on it as a rhetorical matter?
18) If you still think originalism does matter substantively, do you teach how to do good history?
19) If the First Amendment is part of your course, is it worth spending more than a few minutes on the Establishment Clause, which is barely, if it all, relevant to the Court?
20) How much time, if any, should we spend on the Federalist Society’s role in generating the reversal of so many precedents across constitutional law and for sponsoring all six current GOP justices?
Your Ethics Alarms Ethics Quiz of the Day is…
Are these ethical questions, political questions, pedagogical questions, or pragmatic questions?
My view: they are substantially unethical questions that arise from already embedded partisan (guess which side) bias, because law schools and law professors are overwhelmingly progressive and Trump Deranged.
To begin with, the questions raise a problem with the teaching of Constitutional Law not unlike the problem of teaching U.S. history: there is too much that needs to be taught and analyzed for any one course, so the necessity of picking and choosing what will be included and what will be left out automatically biased any such course. This was evident when I took Constitutional Law, and there are decades more to cover now.
Althouse, a former law professor (but then so am I), pretty much summed up my reaction in her post on the list. She wrote in part,
“…the argument that we’ve got a special problem right now is summed up in the first 2 questions:1) Do we teach that we are living in unique times with a unique President raising unique separation of powers, federalism, and rights issues? If so, how do we deal with pro-MAGA students?
2) Do we raise the question whether we are in or facing a constitutional crisis? How do we do that without sounding partisan?The answer is no. That is, no to the first part of the question, and then we don’t need to reach the second part of your question… except to to turn it around and ask you to ask yourself what it says about you. You don’t want to sound partisan? You need to deal with students who are not on your side?
I think I know how you’ll answer. You’ll claim that you are not partisan. You’re just right. Those MAGA students over there are wrong but they believe that they are right. You’d like to portray them as political in a way that you think you are not, and how can you do that if the cases you’re reading back them up?
I assume without knowing that the professor fans of those 20 questions won’t cover the Biden Puppet Presidency and the autopen scandal at all. After all, they know what the real constitutional crisis is.
Ethics Alarms 
“My view: they are substantially unethical questions that arise from already embedded partisan (guess which side) bias, because law schools and law professors are overwhelmingly progressive and Trump Deranged.”
EXACTLY what I concluded after reading #1; did I jump the gun…?
PWS
I had the exact same reaction at the same time. This person has zero sense of rhetorical subtlety. Why? If there were actually any substantive proposals here it would have been much more effective to cloak his partisan bias at least somewhat and sneak it in gradually while maintaining deniability. What I immediately conclude from reading #1 that is that this is NOT an attempt at academic discourse re the topic at hand (challenges in teaching constitutional law). Instead I read it as a self-aggrandizing form of virtue signaling to other members of this person’s chosen tribe…
“If there were actually any substantive proposals here it would have been much more effective to cloak his partisan bias at least somewhat and sneak it in gradually while maintaining deniability.”
Bravo India November Golf Oscar! Some people are so dad-blamed convinced of the infallibility of their position that they thoroughly repudiate any possibility that it might just be a tad off.
A common theme, here: How do they get like this?
“Uncertainty Is An Uncomfortable Position, But Certainty Is An Absurd One” Voltaire
PWS
CG: “How do they get like this?”
Hmm, well, there are a few approaches to insight here based on psychological research.
I would divide them into individual and social levels of analysis, and include trait and situational distinctions as well.
I think for this particular case (OP) the social is the most insightful — this is someone performing to gain social approval from their tribe. These kind of performances are NOT necessarily fully authentic. Put the person in a different social pool for a while and see if they start voicing new opinions more in line with their new social context, to gain acceptance there. So their expressed position is not necessarily deeply held, it’s a behavior rather than a core belief.
At the individual level (not necessarily relevant to this case) the “O” personality dimension — openness — varies between people. People are born different. People high in O are intellectually flexible and react to contrary ideas with curiosity rather than defensiveness. People lower in O tend to have more fixed opinions and are less open to considering alternative points of view.
Development matters too. Children who grow up in environments in which only one perspective is available (think religious cults) don’t get any practice trying on different perspectives, whether temperamentally high low or medium in O. Children who grow up in environments with a big range of perspectives (as I did, moving frequently to different countries and cultures) learn that differences in perspective are common and normal and part of cultural variety. As a result, they seem less threatening.
Which leads us to a situationally based factor to which we are all prone, regardless of temperament and upbringing: the threat/rigidity effect. Threat increases arousal and at a sufficiently high level of arousal well-practiced and familiar responses are available and less familiar ones simply are not. High levels of threat basically shut down the prefrontal cortex (responsible for thinking things through, a slow process) in favor of the parts of the brain responsible for quick, “thoughtless” action (flight, fight, freeze). The things we “learn” in such circumstances are learned deeply and emotionally (limbic system) but these learnings are not subtle AT ALL, they are about danger and the most basic judgment of GOOD/BAD. If the stimulus is extreme enough–especially if repeated often and when the person is in a vulnerable state — for example a young child — this is experienced as trauma and can result in hair-trigger emotional responses (perceived from the outside as an overreaction) to a perceived threat that the person themselves does not understand. In this way, trauma creates rigidity; the healing of trauma restores greater flexibility.
“So their expressed position is not necessarily deeply held, it’s a behavior rather than a core belief.”
Kind of an validation/attention-seeking Schrödinger’s Douchebag?
PWS
Yes, a behavior. Might be validation/attention-seeking. More broadly, this behavior can be a way to AVOID the kind of negative attention that is attracted by any signal of heresy (in the current era, getting “cancelled”, in other eras and contexts, more severe results). This kind of “See? I fit in, I understand the dogma to which we will all pretend to adhere” can be easily observed on both the right and the left in our current political climate. [Not that people in the center are immune to this common human social behavior, but the center is less prone to purity tests.]
Holy crap!
It’s signature significant that “Dorf on Law” actually posted those questions without some kind of obvious disclaimer that they weren’t serious and it was all just a joke.
Those questions show me that the politically biased author has been thoroughly indoctrinated over the last 15+ years by the left’s biased political propaganda and shouldn’t have anything at all to do with teaching law students – EVER!
In my opinion; the underlying core of the questions is political and other than the fact that politicians actually created the laws, “politics” should never become part of teaching law.
I’ve never heard of “Dorf on Law” until now, but after reading those questions, and some other random posts just now, it’s apparent to me that Dorf on Law is “all in” on progressive ideology. Dorf on Law seems to agree with these four progressive tenants of “truth” that are widely accepted as the only truth for the 21st century political left;
The left is right,
The right is wrong,
Wrong is evil and
Evil should be destroyed.
That really is the dead end of the 21st century political left’s critical thinking.
I forgot to mention that since I think the core of the questions is political, they are therefore unethical questions to ask in context with educating lawyers.
Why does Dorf’s law remind me of a truncated Tim Conway in professorial garb?
As someone who has taught on the college level it is obvious that the questions are loaded ones. Each and every question could be rephrased to be neutral. Holly’s response sounds reasonable as to why such a teacher would frame the issue this way. Unfortunately, far too many who claim the mantle of educator are so locked into some dogma they are technically worthless when it comes to stimulating intellectual curiosity.
I find topics 15 and 16 showing a HUGE bias that’s not talked about much in legal discussions. I notice he uses the term struggling with regards to how the lower courts are addressing Bruen. Another term the second amendment community likes to throw around is insubordinate when it comes to interpreting Bruen. The lower courts really don’t want to rule the way that Bruen is directing and contort themselves into knots to come up with opinions that support gun control laws in conflict with Bruen.
The whole “Follow Me on Bluesky” just left of the article is kind of a dead giveaway, isn’t it?
For my money, questions 1-6 are all progressive axe-grinding and purely political questions. 4 and 5 are worth discussions, surely, from at least a historical perspective.
7, 9, and 10 are worth at least some discussion. There are still some unresolved issues there that would be interesting to all. 8 is just absurd TDS couched as a serious question.
11 could be presented interestingly, but frankly, given that substantive due process was just another name for blatant judicial activism, I think it deserves relatively little attention.
12, 13, and 14 in addition to the major questions doctrine are all fine topics, as are 15 and 16.
17, 18, and 19 are purely political nonsense. The premise in each one of those questions gives the game away.
20 is the tell that this guy is unserious and his classes should be avoided.