Category Archives: TEACHING

Duke’s New Human Rights Center

I received an email today announcing Duke Law School’s new Human Rights Center, Human Rights @ Duke Law:

Duke Law provides an integrated approach to human rights education, advocacy and scholarship that places students at the intersection of human rights theory and practice, domestically and abroad.

The Center includes a Human Rights Clinic. Its website says:

Types of clinic projects include those that: apply a human rights framework to domestic issues; involve human rights advocacy abroad; engage with international institutions to advance human rights; and/or address human rights in U.S. foreign policy.

Its new director says:

I am committed to enabling Duke Law students to make human rights work in a globalized world.  This means developing clinic projects and practice opportunities that are both innovative as well as reflective of and grounded in sound and rigorous lawyering and legal analysis.  By addressing the role of law and lawyers in engendering social change, the clinic and its students will advance the frontiers of human rights law and advocacy in ways that are smart, strategic, and impactful.

This sort of stuff is hardly unique to Duke. Many law schools have something like it: a Human Rights Center or Program explicitly devoted to advocacy as well as education and research, with a clinic through which students “practice” human rights law under the supervision of a lawyer. The only thing that distinguishes Duke is that they sent me spam about their program.

So I don’t mean to pick on Duke alone when I raise the following questions:

1. How many students actually do become human rights lawyers? Do the numbers justify the resources devoted to human rights centers and programs?

2. Is it appropriate to create centers in a university that combine research/education, on the one hand, and advocacy, on the other. Is it possible that a commitment to advocacy may interfere with research and pedagogical commitments?

3. What does human rights advocacy mean, anyway? Does it mean making claims based on the law, or does it mean making political and ideological arguments? Does it matter what these arguments are, or must they be connected in some way to a law school’s mission?

4. Is there a difference between “human rights” as a moral or political ideal, and “human rights law.” If so, do clinics pay attention to this difference?

5. Should law schools set up clinics that advocate for Christian ethics? Neoconservative ideals? The platform of the Democratic party? Are these missions different in kind  from human rights?

6. Do law schools with Human Rights Programs–and other programs whose missions explicitly combine advocacy with education and research–monitor these programs in order to ensure that they act consistently with the law school’s mission, whatever it is? If so, do they issue public reports with their findings? If they do, I’d like to see them.



What Courses Should Law Students* Take?

harvard pollThis image is from a paper by Fried, Coates, and Spier. They surveyed employers of Harvard Law School alumni, and found that employers believe law students should take accounting and corporate finance above all (5 is extremely useful for an associate to have taken; 1 is not at all useful)–even students who go into litigation. This chimes with my experience. I tell students that they should take as many finance-related courses as possible, including advanced courses in the business school. Math-anxious law students normally shy away from classes like these, only to find that they are expected to understand what a collateralized debt obligation or credit default swap is on the first day of practice. And, unlike the case of, say, antitrust, a good understanding of finance is not something one can pick up from practice. One might learn to fake it, but one needs a deep understanding. Every other big case these days seems to have a large finance component, and lawyers who are comfortable with finance can contribute more than those who aren’t.

*As several people rightly pointed out, law students who plan to practice in a large law firm in New York, Chicago, or other big city.


Originalism seminar class 1: Heller

The graph below shows the number of students who give themselves a 1 (“strongly disagree”) to 5 (“strongly agree”) in response to the statement “I consider myself an originalist.” We also asked them (anonymously) for their political beliefs, and there is a moderate correlation (0.48) between being an originalist and being conservative.
Let’s see whether students change their mind by the end of the course. Meanwhile, a few comments on Heller. It seems to me that the text of the Second Amendment suggests that the right to bear arms is tied to serving in a militia, though not unambiguously, and that the exhaustive historical research discussed by the Court does not resolve the ambiguity one way or the other. A general preference for allowing voters to make up their own mind, the absence of any allegation or evidence of political failure, a relevant precedent if not a strong one, and a very long history of gun control legislation across the country all point to upholding the statute. Both Scalia’s and Stevens’ opinions are horrible messes. Scalia’s parsing of the text is wooden and ludicrous. Both of them select the evidence they like and interpret it tendentiously. Neither show any feeling for history. The opinions are tedious, pompous anti-models of judicial writing, no advertisement for the method of originalism.

Originalism seminar: questions for first class

For our first meeting of the originalism seminar tomorrow, we’re reading Heller, the Sunstein/Barnett debate, and the Brest article. Here are some (possibly leading) questions for students to think about ahead of class. If time permits, I will provide my own answers in a later post.


Does this case represent the triumph of originalism because both sides dwell on the original understanding of the Second Amendment or a failure because they don’t agree on what it is? One argument for originalism is that it constrains judicial discretion; well, does it?

Does Scalia or Stevens provide the better account of the meaning of the Second Amendment? One thing to ask yourself is how carefully you think the drafters of the Constitution chose these words, and whether the people who approved the Constitution thought about them as carefully as the Court implies. In this connection, my eye was caught by Scalia’s statement that “the fact that the phrase [‘bear arms’] was commonly used in a particular context does not show that it is limited to that context.” Sensible way to interpret a clause?

Do you think a historian who was conscientiously trying to figure out how people understood the Second Amendment would write the way Scalia and Stevens do?

Justice Scalia says Miller does not control the Court because it was not a thorough examination of the Second Amendment. What if it had been—but had come out the other way, like Stevens’ opinion? Would Scalia have decided Heller differently?


What are the politics of originalism—and the politics of those who criticize originalism? Is originalism “conservative,” or, as Sunstein argues, “radical” (or “fundamentalist”), or neither? Note the disagreements about rhetoric as well as politics and law. Is it unfair to refer to a “Lost Constitution” or a “Constitution in Exile”?

What is their core disagreement about originalism? Notice that Barnett returns again and again to the question of judicial discretion, and Sunstein to the question of good outcomes (do we want to live under a Constitution that permits the government to discriminate on the basis of race and sex?). Do they engage? To what extent does the argument for originalism depend on the argument against its alternatives?


“The interpreter’s understanding of the original understanding may be so indeterminate as to undermine the rationale for originalism” (p. 222). Comment.

What entrenched and/or popular constitutional doctrines does originalism rule out? See p. 224 and refer back to Sunstein and Barnett.

What are the “ends of constitutional government” that a good theory of constitutional interpretation must serve, according to Brest? Do you agree with Brest that those are the ends of constitutional government? And how do they connect up with the Ely/Bickel approach that Brest commends?

Originalism and its critics

This quarter I co-teach a seminar on Originalism and Its Critics with my new colleague, Will Baude. I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing to so many people (but mainly conservatives), and why it plays such an important role (at least, as a matter of rhetoric) in constitutional politics. If you are interested, here is our syllabus (Originalism and Its Critics syllabus dec. 12). I will post reactions to the articles as I read them, and perhaps Will will post his own reactions at the Volokh Conspiracy where he blogs.