I have no f**king idea what's going on in Con Law. Help?!

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Re: I have no fucking idea what's going on in Con Law. Help?!

Postby beachbum » Sun Apr 15, 2012 11:43 am

Shock's post is right on the money. Also liked this one from the other thread:

vanwinkle wrote:Most of these legal classes are about 1) what the law is and 2) the different ways it can be interpreted. Con Law is ultimately no different. The only real difference is the differences in interpretation are presented from a history perspective, because they arose at different periods in time.

Don't think about it as a history lesson. There are really two main "sides" to Constitutional Law interpretation; on one side is a bundle of similar related theories defining limited approaches (textualism, formalism, originalism, federalist narrowing) and on the other side is a bundle of related theories defining expansive/interpretive approaches (the "living Constitution", intent-based instead of text-based interpretation, purposive theory). It's important to know how a court with a majority on one side will behave, and how a court with a majority on the other will. History informs that, because by looking at history you can see how the court behaved on each side of the aisle.

For the most part, you don't need to know exactly what the Warren Court did and when, it's not a history lesson. But you do need to know that the Warren Court was very intent-based and that its decisions are more in line with modern justices who believe in a "living Constitution". You need to recognize that Lochner was a form of judicial activism and interpretation, but one that was actually very limiting and narrowing of federal powers because of the way it was applied. You need to understand the difference between Lochner using substnative due process to limit federal power, and modern decisions using substantive due process to expand Constitutional rights and limit the states. You need to understand that the modern court can often get a majority behind a textualist or originalist opinion, and that's why Warren-era ideas aren't likely to work today.

And most importantly, you need to understand that the Court is cyclical and that by looking back through history you can see how these approaches have played out before, and use that to predict how they'll play out with judges of each philosophy in the future (which is what you'll probably have to do on the exam). The history is important, but only as a way of informing your understanding of the different legal theories.

I wish I understood this before I started Con Law.

Seems to me that many cases (particularly cases which have since been overruled) are significant not for their holding, but for the process/reasoning that the judges applied to get to that holding. So Chemerinsky is great as an overview, but you're still gonna want to focus heavily on your readings/notes for more concrete examples of interpretive models (textualism, structuralism, nonoriginalism, etc.), standards of review (strict, intermediate, rational basis), and broader policy concerns (federalism, separation of powers).

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